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IN THE UNITED STATES COURT OF FEDERAL CLAIMS

NOT FOR PUBLICATION

____________________________________

)

ACCELGOV, LLC, )

)

Plaintiff, )

)

v. ) No. 22-1433

)

THE UNITED STATES, ) Filed: December 14, 2022

)

Defendant, ) Re-issued: December 20, 2022*

)

and )

)

TECHNICAL AND MANAGEMENT )

RESOURCES, INC., )

)

Defendant-Intervenor. )

____________________________________ )

MEMORANDUM OPINION AND ORDER

In this post-award bid protest, Plaintiff, AccelGov, LLC, challenges the General Services 

Administration’s (“GSA”) contract award to Defendant-Intervenor, Technical and Management 

Resources, Inc. (“TMR”). Plaintiff, the Government, and TMR have all filed Motions for 

Judgment on the Administrative Record. See ECF Nos. 27, 32, 36. On the same day Plaintiff filed 

its Motion for Judgment on the Administrative Record, it also filed a Motion to Conduct Discovery 

and to Supplement the Administrative Record (“Motion”), which is now before the Court. See

ECF No. 28. For the reasons below, the Court GRANTS Plaintiff’s Motion.

* The Court issued this opinion under seal on December 14, 2022, and directed the parties 

to file any proposed redactions by December 30, 2022. On December 19, 2022, the parties filed a 

joint status report advising the Court that they agree the opinion can be released with no redactions. 

See ECF No. 42. As the parties do not propose any redactions, the Court reissues the opinion 

publicly in full. 
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BACKGROUND

GSA issued Request for Quote No. 147QFHA22Q0005 (“RFQ”) to procure information 

technology services in support of the Defense Commissary Agency (“DeCA”). Pl.’s Am. Compl. 

¶¶ 5–6, ECF No. 26. Advanced Alliant Solutions Team (“AAST”), which is a joint venture 

between TMR and 22nd Century Technologies, Inc. (“22nd Century”), is the incumbent contractor 

currently providing similar services to DeCA (“Incumbent Contract”). Id. ¶ 24. TMR is the 

managing partner of this joint venture. Id. In its RFQ proposal, TMR listed as past experience its 

work on the Incumbent Contract, representing that it “works closely with 22nd Century” in 

performing the contract and that it “has managed [the] contract, since 2018.” Admin. R. 2049, 

ECF No. 25-1 (hereinafter “AR”). To further demonstrate past experience, TMR also listed 

another AAST contract through which it provided information technology support for the Naval 

Air Warfare Center Aircraft Division (“NAWCAD Contract”). AR 2053. TMR represented that 

it was the “Joint Venture (JV) managing partner for this task order (TO) contract as [AAST].” Id. 

In describing the scope of its past experience on these contracts, TMR consistently referred to the 

work of “the Team,” “AAST/TMR,” and “AAST/TMR’s Team.” AR 2049–58. 

Plaintiff argues that TMR’s descriptions of its past experience on the Incumbent Contract 

and NAWCAD Contract (collectively “Past Contracts”) amount to material misrepresentations. 

ECF No. 26 ¶¶ 103–05; Pl.’s Mot. for J. Admin. R. at 34, ECF No. 27. Plaintiff contends that, 

although TMR was the managing partner of the joint venture with 22nd Century that is AAST, it 

performed a very small percentage of the work under the Past Contracts. ECF No. 26 ¶¶ 110–12; 

ECF No. 27 at 35. Rather, based on the declaration of 22nd Century’s President and the attached 

task order lead requests, Plaintiff asserts that 22nd Century served as the “Lead” for AAST on the 

contracts and performed the vast majority of the substantive tasks. Id.; see Decl. of Satvinder 
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Singh, ECF No. 26-1. Citing to contract-level statistics provided by Mr. Singh, Plaintiff alleges 

that “TMR did only 9% . . . [of the work on the Incumbent Contract] and 5% . . . on the NAWCAD 

Contract.” ECF No. 27 at 37. Plaintiff argues that TMR should be disqualified from the 

procurement on account of its misrepresentations. ECF No. 26 at 35. 

Plaintiff now moves for leave to conduct limited discovery and supplement the 

Administrative Record with evidence that it argues is essential to establishing TMR’s 

misrepresentations. See generally ECF No. 28. Specifically, Plaintiff requests leave to serve four 

interrogatories to TMR asking it to describe in detail its work on the Past Contracts and, if it denies 

that 22nd Century was the lead on those contracts, to describe the basis for that denial. Ex. 1 to 

Pl.’s Mot. to Conduct Disc. & Suppl. Admin. R., ECF No. 28-1. Plaintiff requests that the 

Administrative Record be supplemented with TMR’s answers to the interrogatories, as well as Mr. 

Singh’s declaration and accompanying attachments. ECF No. 28 at 3. Plaintiff claims these 

documents “further demonstrate how little work TMR performed on the incumbent contract and 

the NAWCAD Contract.” Id.

DISCUSSION

I. Standard for Granting Leave to Conduct Discovery in a Bid Protest

It is well settled that in a bid protest case “the focal point for judicial review should be the 

administrative record already in existence, not some new record made initially in the reviewing 

court.” Axiom Res. Mgmt., Inc. v. United States, 564 F.3d 1374, 1379 (Fed. Cir. 2009) (quoting 

Camp v. Pitts, 411 U.S. 138, 142 (1973)). Therefore, “the parties’ ability to supplement the 

administrative record is limited.” Id. Indeed, according to Federal Circuit precedent, courts should 

allow supplementation in record review cases only when “the omission of extra-record evidence 

precludes effective judicial review.” Id. at 1380 (quoting Murakami v. United States, 46 Fed. Cl. 
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731, 735 (2000), aff’d, 398 F.3d 1342 (Fed. Cir. 2005)). Supplementation or discovery is not 

permissible “merely because the proponent of such measures believes that it will ‘improve the 

court’s “understanding” of a case.’” Connected Glob. Sols., LLC v. United States, 159 Fed. Cl. 

801, 805 (2022) (quoting NEQ, LLC v. United States, 86 Fed. Cl. 592, 593 (2009)). 

If it is essential for effective review, “[a] party in a bid protest may seek through discovery 

‘relevant information that by its very nature would not be found in an agency record.’” Alaska 

Structures, Inc. v. United States, 144 Fed. Cl. 80, 85 (2019) (quoting L-3 Commc’ns Integrated 

Sys., L.P. v. United States, 91 Fed. Cl. 347, 354 (2010)). “Evidence of an inaccurate representation 

falls within that category,” id., because “no one could reasonably expect [such evidence] to be 

contained in the administrative record,” Golden IT, LLC v. United States, 157 Fed. Cl. 680, 688 

(2022). The movant, however, must demonstrate “inconsistencies” in a party’s representations 

that “make plausible the inaccurate representation claim.” Alaska Structures, 144 Fed. Cl. at 86. 

Such inconsistencies must be more than “innuendo or suspicion,” but need not amount to “explicit 

contradiction[s].” Id. at 85–86 (quoting Terry v. United States, 96 Fed. Cl. 156, 164 (2010)). 

Under this standard, other judges of this Court have granted requests for discovery and/or 

supplementation in similar circumstances. See, e.g., id. at 86; Golden IT, 157 Fed. Cl. at 688–89; 

Connected Glob. Sols., 159 Fed. Cl. at 806; Orion Int’l Techs. v. United States, 60 Fed. Cl. 338, 

347 (2004).

II. Discovery and Supplementation of the Record is Necessary to Meaningfully Review 

Plaintiff’s Material Representation Claim.

Plaintiff argues that discovery and supplementation are essential for the Court to effectively 

review its allegations that TMR made material misrepresentations because those purported 

misrepresentations are made clear only through evidence that exists or can be developed outside 

of the record. ECF No. 28 at 3. In response, Defendant and TMR argue that discovery and 
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supplementation are unnecessary because even if Plaintiff receives the answers it expects to 

receive from TMR, it will be insufficient to support a material misrepresentation claim. TMR’s 

Obj. to Pl.’s Mot. to Conduct Disc. at 2, ECF No. 33; Def.’s Opp’n to Pl.’s Mot. to Conduct Disc. 

at 2, ECF No. 34. Specifically, they argue that Plaintiff has failed to identify a statement in TMR’s 

proposal that was “false” or to show that the RFQ required TMR to provide the type of specific 

details Plaintiff seeks to develop through discovery. ECF No. 34 at 2–3; ECF No. 33 at 2. The 

Court concludes that, at this stage, Plaintiff has made a “plausible . . . inaccurate representation 

claim” that warrants limited discovery and supplementation. Connected Glob. Sols., 159 Fed. Cl. 

at 806 (quoting Alaska Structures, 144 Fed. Cl. at 86).

A. Plaintiff Seeks Information Relevant to Its Material Misrepresentation Claim.

A material misrepresentation claim in a bid protest may be premised on explicitly false 

statements, or it may be based on inconsistencies or contradictions. Alaska Structures, 144 Fed. 

Cl. at 85–86. The court has likewise entertained misrepresentation claims based on omissions. 

See LightBox Parent, L.P. v. United States, 162 Fed. Cl. 143, 153–58 (2022). Accordingly, 

demonstrating a false statement or explicit contradiction is not necessarily required to justify a 

request for limited discovery. Alaska Structures, 144 Fed. Cl. at 86. Evidence that TMR omitted 

information from its proposal, or included inaccurate information, provides a basis for a colorable 

misrepresentation claim. Connected Glob. Sols., 159 Fed. Cl. at 806.

Here, Plaintiff has alleged that TMR’s descriptions of its prior experience on the Past 

Contracts were inaccurate or misleading because they were “written as if TMR materially 

participated in performing that work,” ECF No. 28 at 2, when allegedly it was “only minimally 

involved (at best),” ECF No. 37 at 4. For example, TMR represented in the proposal that it has 

managed the Incumbent Contract and was the managing partner for the NAWCAD Contract, AR 
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2049, 2053, when allegedly 22nd Century was the Lead, ECF No. 26-1 ¶¶ 5, 7 (describing 22nd 

Century as the “de facto prime contractor”). The level of TMR’s involvement in performing the 

Past Contracts is arguably material where the RFQ stated the DOI would evaluate past experience 

to determine whether the quoter had “experience with similar scope, size, and duration with 

minimal risk addressing [certain] skill/task areas.” AR 532 (emphasis in original). The DOI relied 

on TMR’s past experience descriptions to find that, cumulatively, its experience “included similar 

scope and magnitude of effort and complexities” of the RFQ’s requirement. AR 2654.

Moreover, Plaintiff has provided more than innuendo or speculation to support its request. 

To demonstrate that discovery is warranted, Plaintiff cites to Mr. Singh’s declaration and its 

accompanying attachments. See ECF Nos. 26-1– 26-4. Mr. Singh avers that, as the “Lead” on the 

Past Contracts,” [i]t performed the bulk of the work, managed the work and served as the 

government customer’s primary point of contact.” ECF No. 26-1 ¶ 7. Mr. Singh’s declaration 

also attaches copies of the AAST Joint Venture Task Order Lead Requests and contract-level 

statistics that purportedly show the relative breakdown of work and revenue between TMR and 

22nd Century on the Past Contracts. See ECF Nos. 26-2, 26-4.

Ultimately, Plaintiff bears the burden of proving its misrepresentation claim. Whether such 

claim is substantiated and, if so, dispositive of this protest are questions that must be resolved on 

the merits. At this stage, however, Plaintiff has made a colorable allegation of material 

misrepresentation and provided at least some supporting evidence. Connected Glob. Sols., 159 

Fed. Cl. at 806. Because the Court’s resolution will necessarily be contingent on information that 

does not (and normally would not) appear in the Administrative Record, Plaintiff’s request for 

discovery and supplementation is granted.
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B. Plaintiff’s Proposed Discovery is Narrowly Tailored to the Needs of the Case.

Even where a movant justifies the need for discovery in a bid protest case, “[t]he Court 

must carefully tailor [such] discovery . . . to reduce its intrusiveness and to limit it to matters that 

may lead to relevant evidence.” Orion Int’l Techs., 60 Fed. Cl. at 345. Here, Plaintiff’s proposed 

discovery is limited and tailored to obtaining information relevant to Plaintiff’s material 

misrepresentation claim. The discovery consists of only four interrogatories requiring TMR to 

explain more fully its involvement in the Past Contracts, including identifying the TMR employees 

who worked on the contracts and how much revenue TMR received. See ECF No. 28-1 at 2–3. 

The interrogatories also require TMR to explain the basis of any denial that 22nd Century led the 

Past Contracts. Id. at 3. Since TMR’s answers could support Plaintiff’s allegation that TMR 

omitted material information from its proposal, or included incorrect information, in a way that 

made its past experience descriptions inaccurate, they seek relevant information. Furthermore, the 

interrogatories are not overly extensive, intrusive, or unduly burdensome. 

Accordingly, the Court will direct TMR to respond to Plaintiff’s interrogatories (ECF No. 

28-1) in the form of a declaration executed under oath and filed with the Court under seal. Given 

the expedited nature of this bid protest and the deadlines in the current scheduling order, TMR will

provide its answers within 14 days, or by no later than December 28, 2022. At this time, the Court 

does not see a reason to alter the current briefing schedule pending TMR’s answers and expects 

that the parties will make any arguments based on the responses during the motions hearing on 

January 6, 2022.

CONCLUSION

For the foregoing reasons, the Court GRANTS Plaintiff’s Motion for Leave to Conduct 

Limited Discovery and to Supplement the Administrative Record (ECF No. 28). The 
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Administrative Record is supplemented with all four documents contained within Exhibit 1 to 

Plaintiff’s Amended Complaint (ECF Nos. 26-1–26-4), as well as TMR’s forthcoming discovery 

responses. TMR shall file with the Court its answers to Plaintiff’s interrogatories (ECF No. 28-1) 

by no later than December 28, 2022. 

This opinion and order will be unsealed in its entirety after January 3, 2023, unless the 

parties submit by no later than December 30, 2022, an objection specifically identifying the 

protected information subject to redaction. Any objecting party must submit a proposed redacted 

version of the decision and provide the reason(s) supporting the party’s request for redaction.

SO ORDERED. 

Dated: December 14, 2022 /s/ Kathryn C. Davis

KATHRYN C. DAVIS

Judge