In the United States Court of Federal Claims

No. 20-972C

(Filed November 12, 2020)

NOT FOR PUBLICATION

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AGC BISHOP, a Joint *

Venture, *

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Plaintiff, *

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v. *

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THE UNITED STATES, *

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Defendant. *

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ORDER

For the reasons stated on the record during the November 9, 2020 status 

conference, the government’s cross-motion for judgment on the administrative 

record, ECF No. 21, is GRANTED, and plaintiff ’s motions to supplement the 

administrative record and for judgment on the administrative record, ECF Nos. 19 

& 20, are DENIED. In summary, plaintiff AGC Bishop, a joint venture between 

Access General Contracting, Inc. (AGC) and Bishop Inc., was found by the Small 

Business Administration (SBA) not to be eligible for a U.S. Navy roofing contract. 

Admin. R. (AR) 491. Competition for the contract was limited to small businesses 

certified under section 8(a) of the Small Business Act, 15 U.S.C. § 637(a)(1), which 

have a bona fide place of business within the geographical boundaries serviced by 

the SBA’s San Diego District office. AR 1, 486–87.

The SBA properly found that AGC, the 8(a) Business Development program 

participant, had not established a bona fide place of business prior to the date that 

plaintiff submitted its initial offer. Contrary to the arguments of plaintiff, although 

it employed a joint venture to bid on an apparently consolidated contract, 15 U.S.C. 

§ 644(e)(4)(B)(ii) does not allow it to use Bishop’s office to satisfy the geographic 

limitation---because this requirement must be met by the 8(a) participant, not the 

joint venture, see 13 C.F.R. §§ 124.3, 124.507(c)(2), and because a geographic 
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preference does not involve any “capabilities” of an offeror. And with the definition 

of “bona fide place of business” requiring a regularly-maintained office with at least 

one full-time employee, and not counting “construction trailers or other temporary 

construction sites,” 13 C.F.R. § 124.3, plaintiff is incorrect in arguing that the 

effective date of the AGC district office may be backdated to some earlier time when 

that firm conducted other business within the geographic limits. For this reason, 

its motion to supplement the administrative record with a contract awarded to AGC 

in September 2016 is DENIED, as consideration of such work is not necessary for 

effective judicial review of the protested decision. Cf. Axiom Res. Mgmt., Inc. v. 

United States, 564 F.3d 1374, 1379–81 (Fed. Cir. 2009) (permitting supplementation

only when necessary to avoid frustrating effective judicial review).†

Under the applicable regulation, AGC needed to establish that it had “a bona 

fide place of business within [the specific geographic] area prior to submitting its 

offer for the procurement,” 13 C.F.R. § 124.507(c)(2)(iv), and this was to be 

determined “as of the date the Participant submitted its initial offer which includes 

price,” 13 C.F.R. § 124.507(b)(5). Plaintiff’s initial offer with a price was submitted 

on July 16, 2019, see AR 207–337, but it had yet to maintain its office within the 

relevant geographic area---having only submitted a lease application that same day, 

AR 742–44. Thus, it was not arbitrary for the SBA to determine that the 

geographic requirement was not met. For these reasons, and as more fully 

explained during the November 9, 2020 status conference, the government’s crossmotion for judgment on the administrative record is GRANTED and plaintiff’s 

motion for judgment on the administrative record is DENIED. The Clerk shall 

enter judgment accordingly.

IT IS SO ORDERED.

s/ Victor J. Wolski

VICTOR J. WOLSKI

Senior Judge

† The government’s motion to strike plaintiff’s references to the AGC contract, see 

ECF No. 22 at 5, is DENIED as unnecessary and unwarranted, as the Court may 

simply ignore the references to extra-record material.