# In th e United States Court of Federal Cl aims

No. 16-44C

(Originally

Filed: March 21, 2016 )

(Re-filed: April 5, 2015) 1

* * * * * * * * * * * * * * * * * * * * * *

STARRY ASSOCI ATES, I NC.

Plaintiff

,

v.

THE UNI TED STATES,

Defendant

. * * * * * * * * * * * * * * * * * * * * * * Bid Pro t est; A s sertions of

Bias; S upplem entation of t he

Adm inistrative Record.

Lars E. Anderson

, Re s ton, VA, with whom was James Y

. Boland

, Ty sons Corner, VA, f

or plaintif f

.

Alexis J. Echols

, Trial Attorney

, U nited States Departm e nt of Justice,

Civil Division, C om m ercial Litigation Branch, W ashington, DC, Benjamin C.

Mizer

, Principal D e p u t

y Assistant Attorney General, Robert E. Kirschman, J r.

, Director, Douglas K. Mickle

, Assistant Director. Christian Maimone

, Of f ice

of General Counsel, U.S. Departm e n t of Health and Hum an s S e r v ices, of

counsel.

OPINION AND ORDER

Pending in this protest of a Departm ent of Health and Hum a n Services’

decision to cancel a solicitation is p l aintif f ’s m otion t o supplem ent the

adm inistrative record with f our depositions it seeks leave to take. Def endant

opposes t he m otion and asks to supplem ent the record with two docum ents of

its own. T he m otion i s f ully brief

ed, and oral argume n t was h eld

t e l e phonically o n March 18, 2016. Because plaintif f m akes credibl e

1 This opinion was originally issued under seal pursuant to the protective order

entered in t his case. The parties conf erred and p roposed a

p p r o p riate r edactions

of protected inf

orm ation. Those redactions are indicated herein with b rackets.allegations that the d e cision to cancel t he solicitation was tainted by bias, we

grant plaintif

f ’s m otion to take lim ited discovery to supplem ent the record.

BACKGROUND

I. General Background And Procurem ent History

The Departm ent of Hea l t h a nd Hum an Services (“HHS”) Program

Support Center (“PSC”) i ssued Request f or Q u o t a t i ons No. 15-233-SOL00023 ( “RFQ” o r “solicita t ion”) on Novem ber 13, 2014. The procurem ent

was set aside f

or sm all businesses and was to be awarded to the lowest priced,

technically acceptable of f eror. Through the solicitation, PSC sought to

p r o c u r e a r ange of b usiness operations services which would support P SC’s

im p lem entation of H HS’s U nif ied Financial Managem ent S y stem (“UFMS”).

P l a i ntif f

, S tarry Associates, Inc. (“Starry ”), is the incum bent p rovider of o n

site operational support f

or UFMS.

UFMS is built on a backbone of com m ercial sof tware known as Oracle

Federal Financials, part o f the Oracle E-Business Suite. T h e RFQ thus

required key personnel t o have experience with that sof tware as well as with

UF M S

. T h e agency was also looking f or expertise regarding several of its

o t h e r s y stem s that worked in coordination with UFMS: the Managing

A c c ounting and Credit Card Sy stem (“MACCS”), a s y stem f or accountin g purchases m ade b y governm e nt credit card holders, and GovNe t -NG, a reporting sy stem used to distribute ope r ational reports. See Adm inistrative

Record (“AR”) 5 4-55. Both MACCS and G ovNet-NG are proprietary sy stem s developed by

Starry and are licensed to HHS. AR 48.

Three c om

panies tim el y subm i tted quotations. The lowest p riced

bidder, Intellizant, LLC (“Intellizant”) of f ered a t otal price of $15,204,633.60

over f i v e y ears. As the low-priced bidde r, it was evaluated f or technical

acceptability along with past perf orm ance and Section 508 Com pliance. 2 The

acquisition plan called f

or the initial technical evaluation to be perf o rm ed by

the Technical Evaluation Panel (“TEP”). The TEP was com prised of three

individuals: [ ], [ ], and [ ]. [

2 “Section 5 08” ref

ers to section 508 of the Rehabilitation A c t of 1973, which

requires that f

ederal agencies provide sof t ware a nd w ebsite accessabi l i t y t o disabled persons.

2] and [ ] are ref erred to in the AR a s “certif ied by the COR.” 3

AR 593. The TEP received the three proposals by ema i l on Novem ber 26,

2014.

The T E P sent its com pleted evaluation to t h e S o urce Selection

Authority (“SSA”) on Decem ber 3, 2014. The evaluation was not unanim ous.

[ ] and [ ] f ound Intellizant to be acceptable–although [

. ] did n o te inf

o rm ation m i ssing f

rom Intellizant’s prop o s a l

– f o r a l l

three f actors, b ut [ ] rated Intellizant technically unacceptable. AR

559 ([ ]’s evaluation sheet).

The SSA, C assandra Ellis, w ho is also t he Contracting Of f icer (“CO”)

f or this procurem e nt and resulting contract, af ter consider i n g t he TEP

assessm ent, evaluated I ntel l izant’s proposal herself and determ ined t hat

Intellizant was t echnically a c c e ptable. See A R 594 (Award Decision

Docum ent). She listed som e o f the concerns f rom the TEP: “m inim al detail

or om ission of detail regarding p e r fo r m ance m etrics, m i nor com p utation errors

and [ lack of

] specif ic detail regarding the accom plishm e nt of the knowledge

transf e r

. ” I d. S he f ound, however, that those concerns c ould be “ e asily [ ]

add r e s s e d a t the tim e of award, and do not o utweigh the strengths of the

technical aspects of I ntellizant’s quote. The com putational errors were

c o r rected in the second revision of Intellizant’s quote.” Id. She a lso f ound

that Intellizant had e xperience with the “ existing sof t ware” a nd with “ Oracle

R12 w hich will b e i m

p l em ented in the com ing f iscal y ear.” She thus awarded

the contract to Intellizant on Decem ber 18, 2014.

Starry was notif

ied of the a ward the sam e day

. It h ad an evaluated price

of [ ] but w as not e valuated f or other f actors because Intellizant

was f o u n d t o b e technically acceptable. Plaintif f f i led a p rotest at the

Governm ent Accountability Of f ice (“GAO”) on D ecem

ber 29, 2014. S tarry

alleged t hat the a gency ’s evaluation o f Intelli z ant was unreasonable because

of Intellizant’s lack of experience with the contract requirem ents and lack of

qualif ied key personnel.

3 “COR” stands f

or C ontracting Of

f icer’s Representative. The AR is n ot clear

what t h e im

portance is of being certif ied by the COR other than that the CO

saw f it to m ention it in the award decision docum ent.

3On J anuary 6, 2 0 15, HHS inf orm ed GAO and Starry of i ts intent to take

corrective action. A f

ter inq u iry f

rom GAO, HHS explained that i t did “ not

intend to reevaluate the requirem ent or s olicit new proposa l s .” A R 715.

Instead, the agency represented that the protest had “revealed certain gaps in

the record” that needed to be f illed, and thus it intended to “thoroughly r eview

the contract f

ile and e nsure that the evaluation is com plete, accurate, and f

ully

consistent with t he requirem ents of the RFP.” Id. GAO d ism issed t he p rotest

as academ i c on January

7, 2015.

In response to what it believed to be an insuf f icient scope of corrective

action, Starry sent a letter to the Clerk of Court o f this court, stating its intent

to f ile a bid protest. On January 9

, 2015, the CO sent a letter to S tarry

indicating that the agency now i n t ended to reevaluate proposals and m ake a

new award decision. AR 718. That representation prom pted Starry to

withdraw its notice of

intent to protest here.

Unlike the f

irst evaluation, which took only t wo or three b usiness day s,

the TEP’s second evaluation lasted f rom January 1 6, 2015 to April 28, 2015.

It issued its n ew report on April 29, 2015. The T EP w as once again unable to

reach a c onsensus because one of i ts m em bers a gain rated Intellizant as unacceptable f

or th e t e c hnical f

actor. There is virtually n o contem porary

docum entation of that process, and the record does not co n t a i n i n dividual

reports of the TEP m em

bers concerning the reevaluation.

The SSA’s report and second award determ ination stated the m inority

and majority evaluators’ views as to the three m ain f acets o f the technical

proposals: 1) Functional Knowled g e T ransf er and Training; 2) Monthly

, Quarterly

, and Year-End Processing S upport; and 3) Minim um Resource

Require me n t s. For each area, the CO agreed with t he m a jority ’s evaluation

and f ound Intellizant to be technically acceptable. She thus concluded t hat

a ward should be m ade to Intellizant as the lowest p riced, tec h n i c a l l y acceptable of

f eror. Of f erors were notif

i ed of that result the sam e date as the

report, April 30, 2015.

On May 5

, 2 0 15, Starry f iled anot h e r p r o t e st at GAO, o nce again

challenging the award on t he basis of Intellizant’s alleged lack of experience

and lack of qualif

ied key personnel. Starry also a l leged bias in the P SC’s

director of accounting services, Mr. Jo h n D avis, who Starry alleged exerted

inf luence to guide the award to Intellizant

4GAO held a h e aring on July 15, 2015, and took testim ony f rom the CO.

Starry w a s

, however, precluded f rom exam ining Ms. Ellis regarding its

allegation of bias. O n August 11, 2015, GAO sustained the p rotest i n part and

d e nied it in p art. GAO f ound that the SSA f

ailed t o “evaluate w h e t h e r t h e

personn e l proposed by Intellizant were capable o f perf orm i ng the PW S

[ Perf orm ance W o rk Statem ent] tas k s ” and “ f ailed to evaluate whether

Intellizant cou l d p r o v i de t he personnel necessary to m eet the solicitation’s

requirem ents.” AR 1129 (f irst GAO decision); Sta r r y A s socs., Inc.

, B41096 8 .2

, 2015 CPD ¶ 253 (Com p. Gen. Aug. 11, 2 015). GAO f ound the

allegations of b ias to b e “without m erit” based o n Mr. Davis’ assertion that he

had r e c u s e d him self f

rom the procurem ent process. A R 1130. GAO

concluded by recom m ending reevaluation of the proposal in accordance with

the RFQ’s stated PW S and key personnel criteria, a dequate docum e ntation of

that e valuation, a nd, if t he agency f ound I ntellizant to be lacking, to t erm inate

the award and evaluate the next-in-line of f eror. AR 1130-31.

The record is then largely silent until Septem ber 8, 2 015, w hen counsel

f or HHS inf

orm ed GAO and Star r y t h a t it intended to cancel the solicitation

rather than reevaluate Intelliz a n t

. C o unsel e m ailed the p arties and GAO the

f ollowing explanation:

Specif i cally

, it has been determ ined that t wo of t he t hree sy stem s

p r o p o s ed to be supported under the instant procurem ent wer e included in the solicitation by error. That is, both M ACCS and

GovNet-NG are the subject of separate license agreem e nts with

Starry Associates which allow the agency t o m ake use o f those

proprietary sy stem s. Included in those license agreem ents are

support p rovisions; and, af ter review, the agency h as determ i ned

that it better suits the g overnm ent’s needs to h a v e t he contract

support and license agreem ents bund l e d together, rather t han

including the support f

unction in a separate m ulti-f aceted

support contract. Indeed, m y client inf orm s m e that the MACCS

license agreem ent will be renewed bef ore the end of Septem

ber

2015, and the GovNet-N G license agreem ent was renewed n

May 2015.

5Def

.’s A p p

. 1

. 4 The agency thus concluded that it would “cancel t he instant

solicitation, redraf

t the statem ent of work to better m atch its current needs, and

re-solicit in Fiscal Year 2016.” Id.

On Septem

ber 15, 2015, Starry f

iled its third protest at G AO,

challenging HHS’s decision to cancel the s olicitation as a pretext so that Mr.

Davis could sec u r e f

u t u r e work f

or Intellizant. Plaintif

f argued that Davis

decided to elim inate the requirem ents of t he solicitation as to w hich Intellizant

was unqualif

ied a nd later to re-solicit the rem aining work in order to avoid

GAO’s earlier recom m endation to reevaluate, which S tarry b e l ieves w ould

have resulted in it winning the original procurem ent. GAO denied the p rotest

by written decision o n Decem ber 23, 2015, f

inding that the agency ’s prof f e red

rational f o r cancellation was reasonable. Thus, even crediting the allegations

of b ias, the result was not af f ected, in GAO’s view, because the “ cancellation

was otherwise reasonably justif ied.” AR 1254.

II. Evolution Of

The Agency ’s Need

The underly ing procurem ent docu mentation is largely silent as to the

evolution of the agency ’s view of its n e e d s v i s

- a

- v is the RFQ. The record

now, however, contains two additional declarations s ubm itted to GAO by the

agency af t er plaintif

f ’s third protest there.

The f i rst is f r om Mr. Davis and is dated O ctober 8, 2015. In i t, he avers

tha t h e w a s asked by the COR f or the MACCS and GovNet-NG license

agreem ents to sign of

f o n their renewals. The G o v N e t -NG renewal was in

May 2015, a nd the MACCS contract was u p f or renewal in Septem

b er 2015.

The r equest regarding the M ACCS contract specif ically is what Mr. Davis say s triggered his conclusion that the UFMS procurem ent should not h ave included

support f or these s y stem s because those services were alrea d y c o v e r ed by

separate contracts. See AR 1243. He als o stated that the UFMS sy s t em and

the two proprietary Starry sy stem s “do n ot talk with e a ch other” and t hus were

not very integral to supporting UFMS. Id. There was thus n o need to pay f or

extra support f

or those sy stem s under the UMFS c ontract, acc o r d i n g t o Mr.

Davis. Id. That being the case, he concl u ded that it was unnecessary to

4 T his docum ent was attached to the g o v e r nm ent’s opposition to plaintif f ’s

m otion to supplem ent the adm inistrative r ecord. The governm ent represents

that it should have been included in the record.

6reevaluate Intellizant and decided a better course was to cancel the solicitation

and re-solicit only those services needed as part o f the UFMS ef f o rt. A R 1244.

W e note, however, that, as plaintif f p o i n t s out, the d

uplication between the

proprietary sy s tem s’ l icense agreem ents and the UFMS contract should have

been apparent in May

2015, when the GovNet-NG contract was renewed.

The second declaration is f r o m Mr. Patrick Joy

, t he interim Head of

Contracting Activity and Com petition Advocate at PSC. I t i s dated October

13, 2015. Mr. Joy declared that rem oving the two proprietary

- related i tem s

f rom the UFMS contract would prom ote com petition. AR 1245. A lt h o u gh

that logic-leap i s u n explained, p r e s u m ably he concluded that the rem oval of

an expertise requirem ent regarding two p ieces of proprietary sof tware would,

at least h y

pothetic a l l y

, result in a larger pool o f q ualif ied of f erors. H e also

records in his declaration that he was told that the work regarding the t wo proprietary sy stem s was only incidental t o the overall e f f o r t

. H e does

recognize in his statem ent that MACCS and GovNet-NG a llow the agency to

better u s e Oracle sof

tware, but also notes that neither i s directly b uilt into it

a nd that the agency could use o ther tools. Id. Further, he state d t h a t P S C i s phasing o ut the Gov N e t sy stem to be replaced by a non-proprietary Oracle

program

. I

d. The Joy declaration also notes in bullet points s everal additional

relevant f acts, including that:

3. Verbal c om m

unication consisted of requests f o r the Program

to determ in e a c o u r s e of a ction in relation to the loss of the

GAO Protest and rem inders that that determ ination was due.

. . .

5

. A t n o tim e d id the Program Of f i ce or Contracting O f

f i c e

discu s s o r c o n t e m

p l a t e r e

- e v a l u a t i n g Intellizant’s proposal either

bef o re or af ter the GAO decision was issued i n August of 2015.

. . .

7. John D avis

. . . r eceived a request t o r e n e w the contract f or
Starry f or the MACCS license and s upport

. . . . This triggered

a m em ory t hat M ACCS support had also been included i n the

Statem ent of W ork (SOW ) f or the UFMS acquisition. H e was

asked and was t old that GOVNET-NG was also proprietary to

Starry A ssociates and was covered under a separate license and

7support contract, but that it has also been included in the U FMS

statem ent o f w ork. W hen he a sked h i s s t a f f why they were

included in m o re than one contract, he was told that is what we have alway s done.

8. I saw John Davis at som e point (unsure of a c t u a l d a t e but

bef o re G AO issued a decision on August 11, 2015) in passing.

H e inf orm e d m e g enerally of the above f acts a n d said t h a t t h e

[ PSC], Financial Managem ent Portf olio w ished t o re-write the

Statem ent of W o rk to rem ove t he duplicative work. I told John

Davis to hold o f

f o n any actions since a GAO decision was due

soon. Our c ourse of action would be dependent o n the decision

of the GAO.

AR 1245-46. The bullet points go on f urther t o r ef

lect that, af

t er GAO r eached

its August 11 decision, Joy f o rwarded a ll o f this inf or ma t i o n t o his

“leadership” to “ keep the m i nf orm ed a nd to try to coordinate a decision on

process f orward.” AR 1 246. D iscussions via em ail and a conf erence call were

held du r i n g the next s everal d ay s. The Program Of f ice indicated t o Mr. Joy

that it w anted to cancel the so licitation and rewrite the Statem ent of W ork. 5

Id.

III. Allegations Of

Bias

Plaintif f s allege that this procurem ent was tainted f rom its inception by

the undue inf

luence of Mr. John Davis, who serves as Accounting Services

Division Manager a t PSC. Mr. Davis was em ploy ed by Intellizant

im m e diately prior t o j oining PSC, during which t im e h e was involved in

Intellizant’ s unsuccessf

ul ef f ort to secure the incum

b ent contract f

or U FMS

support. P l a i n t if

f won and has perf

orm ed that contract. During his

em ploy m ent at I ntellizant, Mr. Davis w as also involved in unrelated work f or

HHS. Plaintif

f alleges that Mr. Davis continues to be p ersonal f riends with the

president and CEO of Intellizant.

Mr. Davis j oined HHS PSC in August 2 010. Plaintif f a l leges that, since

Mr. Davis began at HHS, Intellizant has received 57 contract awards, totaling

5 W e are not clear on whether the ref erence to “Program

Of f ice” ref e rs to

the PSC or a com

ponent of it.

8over $ 12.5 m illion. 43 of these contracts were sole-source awards, which were

worth $5,227,315. Plaintif f f urther a lleges t hat, prior to M r. Davis’ inception

at HHS, Intellizant w on o nly $98,233 i n c o n t racts f r om HHS. Given his

history with Intellizant and its past ef f ort to win t he predecessor c o ntract, Mr.

Davis purported to recuse him self f rom the solicitation. AR 940 (“I recused

m y self f rom this procurem e nt because I am a f orm er em p loy ee of Intellizant.”)

Mr. Davis is the supervisor of [ ], w ho was the COR f or the

incum bent U FMS c ontract. [ ] p repared t he PW S f o r the current

solicitation. In a signed statem ent prepared f or the GAO, he represented t hat

Mr. Davis “highly recom m ended” that he r ecuse him self f rom the TEP due to

his involvem ent with the incum bent UFMS contract. AR 957. Af ter Starry ’s

f irst protest, [ ] of f ered to once again be part of the TEP, b ut Mr.

Davis told him that i t “would n ot look good.” Id. Ins t e a d

, t he TEP w as, according t o [ ], m ade up o f individuals selected by Mr. D avis. Id.

Plaintif f alleges that Mr. Davis asked him to recuse him self because of [

] ’ s consistent positive perf orm ance f

eedback during the incum b ent

c ontract perf

orm ance, of which Mr. D avis was aware. [ ] a l s o

states that Mr. D avis asked him t o give Starry negative f e e d b a ck. AR 958.

His ref usal to c om

ply with t hat request has caused f riction in their r elationship,

according to [ ]. Id. Finally

, [ ] s t ated that he was

instructed by Mr. Davis several tim es to prepare f or a c hange in v endor and

that Mr. Davis represented that Intellizant would be m uch better “than what we have today ” as f

ar as UFMS support. Id.

Internal correspondence between [ ] a nd Mr. Davis reveals

tha t [ ] inquired of Mr. Davis w ho and how m any persons should

m ake up t he TEP. Mr. D avis recom m ended a panel of three and recom m ended

three nam es, one of w hom

, [ ], was eventually part of the TEP. AR

1 5 3 5 -36. [ ] responded that there should be a t le a s t “ o n e p e r s o n with UFMS experience,” and f urther recom m ended t hat Mr. Davis, [

], and [ ] com prise the TEP. AR 1534-35. He also of f e red

his own services if M r. Davis f elt that appropriate. Mr. D avis replied that he

should be replaced by [ ] or Ed Jackson, bot h o f w h o m he stated

were aware of the contract ef f ort. The re c o r d i s not clear how the f i nal

com position of

[ ], [ ], and [ ] was reached.

[ ] was t he COR f or Intellizant’s o ther unrelated contract with

HHS. On Novem

ber 21, 2 0 14, she prepared a past perf o rm ance questionnaire

f or Intellizant o n that contract and subm it t e d i t to M egan Kisam ore, the

9Contract Specialist f or the UFMS solicitation. She rated Intellizant as “exceptional” in every category and stated that she “def initely w ould” award

another contract to I ntellizant. AR 3 13. I n a signed statem ent subm itted as part

of the agency ’s report to GAO, she s tated t hat she was u naware of any

i n v o l v e m ent by Mr. Davis with the subject procurem ent and has very litt l e day -to-day contact with him

. AR 965. S he did, h owever, inquire of Mr. Davis

af ter [ ] q u e s t i o n e d h e r i nvolvem ent in the TEP because she had

just c om pleted a past perf

orm ance q

uestionnaire f

or Intellizant on i t s o t h er

contract. She reported that Mr. Davis a ssured her th a t i t w a s alright f or her

participate and thanked her f or her willingness to do so. Id.

On Novem

ber 2 6

, 2 0 1 4

, [ ] questioned [ ]’s

involvem ent given t he r evelation that I ntellizant w as the l owest priced of f eror

and that [ ] h ad j u s t p r e v i o u s ly subm itted a p ast perf orm ance questionnaire f

or Intellizant. AR 1449. H e d id not question her integrity in

f act but only whether she would appear as biased. [ ] responded t hat

it was “not [ her] call” a nd that she was a s ked the day bef ore by [ ]

“per the directi o n o f J o h n D avis.” AR 1448. She suggested that she be

replaced by

Mr. Jackson and f

urther directed [ ] to inquire of Mr.

Davis. I d

. I n stead, [ ] relay ed t hose s am e concerns t o Ms.

Kisam ore, who in turn relay ed them to Ms. Ellis, t he CO. Nine m inutes l ater,

Ms. Kisam ore replied back to [ ] that t he C O had cleared [

]’s involvem e nt. A R 1472-73 (“there i s n o i s s u e ” )

. [ ] t hen

f orwarded the entire c hain of em ails regarding her involvem ent t o Mr. Davis

with the f

ollowing encapsulation: “FYI

– no m ore con c e r n s,” which was

f ollowed with a sm iley f

a ce em oticon. AR 1 523

. T h e r ecord contains no

indication of the context f o r [ ]’s f

orwarding of that em ail chain to

Mr. Davis. Plaintif

f

, naturally

, alleges t hat the t wo m ust have colluded during

the procureme n t p r ocess to award to Intellizant, and, a t a m inim um

, t hat it

ref lects that Mr. Davis would be pleased by her continuing involvem ent.

The em ail record then shows that Mr. D avis asked [ ] to call

him i n response to her f

orwarding of the e m ails. Id. The record does not

record whether that conversation took place, or, if it did, the sub s t a n c e o f i t.

IV. The Procurem e nt Record

Substantial portions of the tortured procurem ent record were produced

in an o n g oing s eries of declarations prepared solely i n response to GAO

10protests. Virtually none o f the inf orm ation contained in those statem ents

appears in docum ents contem poraneous w ith the contracting process itself

.

On June 1

, 2015, Mr. Davis’ f i rst signed statem ent appears in the record

in response to Starry ’s allegations i n i t s s econd protest that h e h ad exerted

undue inf luence over the procurem ent. This i s f ollow e d by an explanation

f rom the CO dated J une 3, 2015, a s igned statem ent f rom Ms. Kisam ore dated

Jun e 1

, 2 0 1 5

, a n d a statem ent f rom [ ] dated May 1 5, 2015,

attached to which were em ails between h im self and Mr. Davis. [ ],

[ ], and [ ] also subm i tted statem ents to GAO dated June

2, 2015, May

29, 2015, and May

22, 2015, respectively

.

The third protest at GAO prom p ted a new round of

signed statem ents

f r o m a gency personnel: the two previously m entioned explanations of the

proposed cancellation by M ssrs. Davis and Joy and a second statem e n t f rom

[ ]

, this one d ated October 8, 2015, in which he states t hat h e had

no discussions w ith Starry or Intellizant regarding t he procurem ent. Bradley

Lindgren, the Assistant to the Director of Accounting S ervices f or PSC also

subm itted a declaration that he h ad m et with Mr. Joy on behalf of Mr. Davis,

his s u p e r visor, regarding the UFMS contact and revising the Statem e nt of

W o rk. That statem ent is dated October 9, 2 015. It is also our understanding

that the agency ’s internal com mu n i c a t ions, such as the above ref e renced

e m ails regarding the procurem ent, were not included in the record unt i l t h e second or third protest.

DISCUSSION

Plaintif f f i led suit here o n January 1 1, 20 1 6

. T h e Adm inistrative

Record was f

iled on February 5, 2016. Plaintif f m oved to supplem ent the AR

on February 25, 2016, asking f or leave to depose Ms. Ellis, M r

. Davis, Mr.

Joy , and [ ]. Plaintif f has identif

ied three gaps in the record that it

believes, in light of the history of the p rocurem en t a n d the bias it believes it

has suf f e red, need t o be f

illed in order f

or ef f ective judicial review. Plaintif f

also a rgues that t hese holes can only ef f ectively be f

illed by the depositions of

those individuals.

The f irst alleged gap is f

r om Novem ber 2014 to J a nuary

2015, during

which tim e the agency was organizing the TEP, the TEP p erf orme d i t s f

irst

evaluat i o n a n d t h e C O m ade her award d ecision. Starry relies in part on the

agency ’ s own decision to take corrective action af ter its f irst GAO pr o test

11because of what the agency characterized as gaps i n t he record, gaps which

Starry argues were never f illed, such a s w h y [ ]’s questions

regarding [ ]’s appearance of bias went unheeded and why [

]’s n oted a list of om issions in Intellizant’s proposal but rated them as technically acceptable n onetheless. Plaintif f also seeks an explanation f or why

the agency d e c i d e d to take corrective action af ter Starry ’ s f

i rst protest was

f iled.

The s econd gap is f rom Janu a r y 2 0 15 to April 3 0, 2015. Plaintif f

alleges that the record i s silent with respect t o the process which l e a d t o the

second a ward to Intellizant or why it took so long to reevaluate the sam e

p r oposals. The record of this reevaluation does not contain individual

evaluation sheets f

o r each TEP m em

ber as i t d id f

or the f i rst ev a l u a t i on in

2014. P laintif

f also points out i s s u e s r a i sed in the agency ’s internal em ail

com m unications, whic h i t believes are u nresolved during the record f or this

period, such as concerns raised by [ ] and [ ] regarding

Intellizant’s p r oposal, and, at least in [ ]’ case, why t hose concerns

did not show u

p in the f inal consensus TEP report. [ ] also asked

f or f u rther clarif

ication regarding the issues t hat [ ]’s had initially

raised regarding om issions f rom Intellizant’s proposal. AR 1485-86 ([

] em ails). P l a i n t i f

f f i n d s t h e response f

rom the C O, AR 1487, to be

insuf f icient.

The third alleged gap i s f r o m J uly 2015 to Septem ber 2015.

Specif i cally

, p laintif

f alleges that the r ecord d oes not explain why the agency only began to c o n s i der cancellation of the s olicitation af ter the second GAO

protest was s ustained. Plaintif f also points out that there is no explanation f or

what took p lace in m eetings d uring t his period t hat ar e o t h erwise ref erred to

in docum ents

. See AR 1543-45 (agency em a ils). Plaintif f believes that the

steps taken by agency personnel during this period, especially af ter the A ugust

11, 2015 GAO decision, are not explained in contem p or a neous docum ents.

The decision to cancel sim ply appears ex nihilo

.

Def endant objects t o p laintif f ’s discovery request. It does, however,

attach t wo docum ents to its opposition that it beli e v e s s h ould have been

i n c l u d e d i n the A R. The f irst is an em ail f

rom agency counsel t o the parties

and G AO o n Septem

ber 8, 2015, whic h explains t he agency ’s rationale f or cancelling the s oli c i t a t i o n r a t h e r t h a n r e evaluating Intellizant, as recom m ended

by the GAO. The second docum ent is a d eclaration of t he CO, created March

9, 2016, in which agency counsel attem pts t o recapitulate the various decisions

12of the agency throughout the two and a half y ear h istory o f this procurem ent.

Def endant argues that S t arry has not m ade the requisite showing of a

credible allegation of bias. Def endant a lso argues that, even if t here are gaps

in the record, the record is still s uf f icient f or the court to do a review,

particularly in light of the March 2016 declaration o f Ms. E llis t hat def endant

proposes we add to the record. Alternatively

, it suggests th a t any gaps t hat

m ight exist would be better addressed by rem and to the agency

.

Plaintif f replies that m

u c h o f t h e inf

orm ation the agency relies on to

respond to the assertions of a lack of an adequate record consists of after-thef act dec larations of

f ered to the GAO o r t o t his c o urt; the inf orm ation is not

contem poraneous w i t h t he real events a s issue. I nsof ar as g aps rem ain,

plaintif f responds that a rem and, in the f ace of serious docum e nted assertions

of the appearance of bias would be i nappropriate b ecause such allegations

uniquely raise c oncerns that the agency will be less than candid in

docum enting what occurred.

I. Plaintif

f Has Presented Credible Allegations of Bias

Bid protests in this court are conducted under t he standards set f orth in

the Adm inistrative Procedures Act. 28 U .S.C. § 1 491(b)(1 ) (4) (2012). A s

such, the parties and the court are norm ally l im ited to reviewing the agency ’s

record o f t h e p r o c urem e nt, which i s m e ant to b e contem poraneous with the

events as they happened and to supply the p arties a nd t he co u r t with an explanation o f the agency ’s decision m aking process. See A xiom Res. Mgmt.,

Inc. v. U nited States

, 564 F.3d 1374, 1379 (Fed. Cir. 2009). Supplem entation

of the adm inistrative record is warranted o nly when it i s n ecessary to ensure

ef f ective judicial review. I

d

. Discovery by deposition, theref ore, would be

unusual.

Nevertheless, we are satisf ied t hat plain t i f

f has m ade the appropriate

case f or supplem e ntation through discovery . Ef f ective judicial review is not

possible when the adm inistrative record “is m issing ‘ relevant inf o rm ation t hat

by its very nature would not be f ound in an agency record–such as e v idence of

bad f aith, i nf o rm ation relied upon but om itted f rom t he paper record, or the

content of conversations.’” InfoReliance Corp. v. United States

, 118 Fed. Cl.

744, 747 (2014) (quoting Orion Int’l Techs. v. United States

, 60 Fed. Cl. 338,

343-44 (2004)). As this c ourt has recogniz e d o n s e v eral occasions, “rare

indeed w ould be the occasions when evidence of bad f aith will be placed in an

13adm inistrative r e cord.” Beta Analytics Int’l v. United States

, 61 Fed. Cl. 223,

226 ( 2004); see also, e.g.

, L-3 Commc’ns Intergrated Sys., L.P. v. U nited

States

, 91 Fed. Cl. 347, (2010); Int’l Res. Recovery, Inc. v. United States

, 61

Fed Cl. 38, 4 1 -42 (2004). Courts have theref ore “ t raditionally c o nsidered

extra-record evidence in assessing alleged b i a s o r b ad f aith.” Int’l Res.

Recovery , 38 Fed. Cl. at 41-42.

W hile governm ent of

f icials are presum ed to operate in good f aith, AmPro Protective Agency, Inc. v. United States

, 281 F.3d 1234, 1239 (Fed. Cir.

2002), a protestor i s entitled to investigate bias if it can m ake a threshold

showing of “m otivation f or the Governm ent em

p l o y ees i n q

uestion to have

acted in bad f

aith or conduct that is hard to explain absent bad f aith,” and t hat

“discovery c ould lead to evidence which w ould p r o v i d e the level of proof

required t o o vercom e the presum ption o f regularity .” Beta A nalytics

, 61 Fed.

Cl. at 226.

A. Questionable Conduct

W hile plaintif

f casts its m otion a s a re q uest to f ill gaps in the record,

and while the record h ere is rem arkably i n n o cent of details supporting the

num erous s teps i n the procurem ent p rocess (especially the agency ’s c hange in

n e e d s a n d decision to c ancel the procurem ent), we t reat the real thrust of

plaintif f ’s request a s o n e f

o r perm ission to investigate its assertions that Mr.

Davis was biased and that the bias af f ected the outcom e

.

There is c redible evidence in the r ecord that Mr. Davis w as biased and

that, d espite his self

-proclaim ed r ecusal, h e continued to af f ect the o utcom e of

the procurem ent in a w a y t h a t benef itted his f

orm er em ploy e r. The m ost

obvious exam

p l e

, o f c o urse, is his d ecision to cancel the procurem ent af ter

I n t e llizant’s two f

ailures to obtain the award. Mr. D avis was a relativ e l y

recent f orm e r em ploy ee of Intellizant, and he recognized h is own apparent bias

and purported to recuse him self f rom the procurem e n t process. AR 940.

[ ] states that Mr. Davis expressed both the inevitability and

desirability

of award to Intellizant. He also states that M r. D avis directed [

] not to participate in the TEP due to [ ]’s ongoing involvem ent

with Starry o n the UFMS contract but then encouraged the partic ipation of [

] who was s im ilarly situated to [ ] with regard to Intellizant on

a d if f erent contract. [ ] also states t hat h e was a sked by Mr. Davis

to rate Starry ’ s perf

orm ance as “unprof

ess ional” f

or the current U FMS

14contract and that, when he declined to do so, his relationship with Mr. Davis

becam e strained.

W e also have em ail correspondence between various agency p ersonnel

d u r i n g the events described above. Those em ails reveal that, despite M r

. Davis’ representation that he h ad recused him s elf f r o m t h e procurem ent in

toto, he had a hand in s electing the T EP. They ref lect that [ ] went to

Mr. Davis when conf

ronted with a challenge to her independence in the m a tter.

Even a f ter that question was resolv e d, she f ollowed up w ith Mr. Davis by

f orwarding him the CO’s resolution of the issue. He alm ost im m ediately asked

her to call him af

ter receiving her m essage. This suggests som ething m ore than disinterested observation on the part of Mr. Davis.

Finally

, despite h is protestations that he was generally uninvolved, Mr.

Davis was clearly th e d e cision m a k er with regard to the cancellation of the

solicitation and f

ailure to f ollow GAO’s direction to reev a luate the award to

Int e l l i z a n t. W hile Mr. Davis as a director of one of t he com ponents of the

PCS had a legitim ate interest as a “custom er” in obtaining only needed

services, there is evidence c alling i nto question whether the d ecision to cancel

the solicitation was based solely on the absence of

need.

On August 11, 2015, GAO sustained S tarry ’s second p rotest, lay i ng out

a variety of def

iciencies i n t h e a gency ’s evaluation of Intellizant, and

recom m e nding that the a gency reevaluate the a w ard consistent w i t h its

directions. The recom m e ndation was, on its f a ce, prejudicial to I ntellizant and

potentially benef

icial to Starry

. T he agency never f o llow ed t hat

recom m e ndation, however, because, M r. Davis changed h is m ind regarding its

needs f r om the UFMS support contract. Mr. Davis’ second statem ent f o r the

record suggests that the idea to revise the agency ’s need arose prior to G AO’s

August 11 decision.

Mr. Joy ’s s tatem ent f

or the record, although lending s om e credence to

the notion that Mr. D avis considered f actors o ther than Starry ’s success at

GAO, also i nf

orm s t h e court that Mr. Joy a nd others at the agency were awaiting the outcom e at G AO bef ore a ction on cancellation of the solicitation.

At oral argum e nt, governm ent counsel suggested that, h a d t h e agency prevailed a t G AO, it could have continued w ith the award to I n t ellizant and

then m odif

ied the contract late r to drop the work that the agency discovered

was duplicated by the license agreem ents. T h ere is no record support f or t hat

explanati o n, and it would, in any e v ent, be highly anticom petitive f or the

15agency to com p ete a contract o n the basis of need e d expertise with several

sof tware sy stem s, while knowing b ef ore f inal award that it d i d not need t hat

expertise, and y et awarding on that basis a n y way

. A s Mr. Joy stated up f ront

in his statem ent f

or the record, dropping that r equirem ent would presum ably

open the com

petition to m ore bidders.

W e are thus l ef

t with a situation in which a previously -recused agency

of f icial stepped in t o c ancel a solicitation af t er the a g ency w as unsuccessf ul in

mu l t i p l e ef

f orts to award the contract t o his f orm er e m ploy er. Plaintif

f

prof f ers e vidence that the rationale f or waiting f

or the out c o m e o f the third

protest was pretextual. All of this af ter the sam e allegedly self -recused of

f i cial

was consulted regarding the m ake up of the TEP, was kept i nf orm ed of the

process by the TEP panelists that he recom m ended, advised one potential TEP

m em ber that he h ad a bias issue while ignoring the sam e issue p resented by his

own recom m endee, m ade k nown h is p ref

erence f o r one of f eror, a nd allegedly

attem pted to bias a perf

orm ance rating f

or the protestor.

In sum

, plaintif

f has presented a credible a l legation of “m otivation f or

the Governm ent e m

ploy ees in question to have acted i n b ad f aith or conduct

that i s h a r d t o explain absent bad f aith.” B eta Analytics

, 6 1 Fed. Cl. at 226.

W e thus turn to the question of whether the supplem e ntation sought is likely

to lead to evidence suf

f icient to overcom e the presum ption of regularity

.

B. Evidence Likely

to be Developed by Depositions

A protestor m

u st present clear and convincing evidence that an agency

of f i c i a l acted with bias o r in bad f aith in order to overcom e the presum ption

of regularity

. See generally Galen Med. As s o c s

. , I n c

. v

. United States

, 3 69

F.3d 13 2 4, 1330 (Fed. Cir. 2004). Supplem entation of the record, however,

requires a lesser standard–a showing of l ikelihood t hat discovery would lead

to evidence that w o u l d me et the clear a nd convincing standard. L-3

Commc’ns , 91 Fed. Cl. at 355. W e f ind that the standard is m et here.

As deta i l e d above, Mr. Davis continued to have a hand in the

procu r e ment, guiding the com position of t he TEP, ready ing other agency personnel f

or an eventual switch to a new contractor, and eventually c ancelling

the solicitation af

ter it b ecam e apparent t hat the agency would have dif f iculty

awa r ding t o I ntellizant. Som e of his explanation f or his involvem ent is

contradicted, or at least cast in a dif f erent light, b y other record evidence such

as the statem ents of

Mr. Joy and [ ] and the em ail correspondence

16revealed at GAO. Further, even assum ing it was not i m p roper f or Mr. Davis

to h ave reinserted him self in the process to cancel t he solicitation, his decisionm aking process is not docum ented in the r ecord in any contem porary f ashion.

Instead it appears o nly thr o ugh t wo self -serving post-hoc explanations

prepared f

or litigation at GAO.

I n the f ace of c redible allegations of bias and unexplained a g e n c y
action, we are lef

t to conclude that the depositions of Mr. Davis, Ms. Ellis, Mr.

Joy

, and [ ] a re necessary f or the court to resolve the issues presented.

W e f ind that plaintif

f m eets the burden f

or showing t hat its request is likely to

lea d to evidence t hat would overcom e the presum ption of regularity

. The

statem ents of

[ ] already

contained in the record directly suggest

bias on the p a rt o f Mr. Davis. The statem ent of Mr. Joy at leas t p a r t i ally

contradicts the i m

p l ication of M r. Davis’ second statem ent f or the record t hat

his decision to cancel the solicitation was unrelated to GAO’s decision in f avor

of Starry . [ ]’s involvem ent in the TEP is questionable in light of [

] ’s representation that he was asked to a bstain f or participating in the

TEP b e cause of his involvem e nt with an of f eror’s ef f ort o n a contract with

HHS but [ ] was not asked to abstain f or that sam e reason. Ms. Ellis,

the CO and the of

f icial ultim at e l y responsible f or t he procurem ent, cleared [

]’s involvem ent. Thus, the taking of depositions of these i ndividuals will

produce t estim ony t hat is m o re probative than t he largely self -seeking post-hoc

explanations currently contained in the record. E xam ination b y counsel m ay

result in f u ller explan a t i ons of the a g ency ’s actions and decisions, as f ar as they exist, f or the agency ’s actions and decisions.

II. Depositions Are W arranted

Def endant also argues that, if the court were to f i nd the record lacking

in som e r espect, that the o nly warranted rem edy is to rem and to the a gency to

supply y et another round of a f ter-the-f ac t e x p l anations. W e d ecline t hat

invitations f

or two reasons.

First, we gave d e f

endant an opportunity to supplem ent the record at the

onset of this c ase in light of the allegations contained in the com plaint. See

Order o f Fe b r u a r y 12, 2016. Def endant declined that invitation. See

Def endant’s Status report of February 19, 2016. Def endant elected t o proceed

with the explanations that agency of f icials had a lready presented t o the G AO.

W e do not see a reason to give it a nother chance to answer t h a t question

dif f erently now.

17Second, in light of the credib l e allegations of b ias a n d s p otty

explanati o n s o f a gency conduct, the inclusion of new explanations short of

discovery by m eans of depositions is unlikely to result in i nf o r m a t ion usef

ul

to t he court i n resolving t he m erits of this protest. Depositions are warranted.

CONCLUSION

W e conclude that plaintif f has m et its b urden in show i n g w h y it is

necessary to supplem ent the adm inistrative record with the f our depositions

d e t a i l e d above. Although the protest is f r am ed as a c hallenge only t o t h e

cancellation of the s olicitation, given the well-f ounded allegations of bias, the

l o n g h i story of this procurem ent, and Mr. Davis’ involvem ent at dif f erent

points alon g t h e way

, we will o pen the record to exam ination of all of the

agency ’ s actions f

rom inception to cancellation o f the solicitation through the

f our depositions requested by plaintif f

. A ccordingly

, the f

ollowing is ordered:

1. P l a i n t i ff’s m otion to supplem ent t he adm inistrative record is granted.

2. D e f e n d a n t ’ s request to include i n the A R the two docum ents

attached to its opposition is granted. The em ail f rom H HS counsel and

the declaration of M s. Ellis will be considered p a r t of the

Adm inistrative Record. 6

3. Plaintif

f is g ranted leave to take the d epositions of Mr. John Davis,

Mr. Patrick Joy , Ms. Cassandra Ellis, and [ ].

4. The parties are d irected to endeavor to com plete t hose depositions

within the next three weeks.

5. The parties are directed to f ile a joint status report on or bef ore April

8, 2016.

s/ Eric G. Bruggink

ERIC G. BRUGGINK

Judge

6 W e recognize that Ms. Ellis’ declaration is not a contem poraneous record

of agency decision m aking, but, in light of our grant of

plaintif f ’s m otion to

supplem ent the record, we will allow it added to the record.

18