1 IN THE UNITED STATES COURT OF FEDERAL CLAIMS

NOT FOR PUBLICATION

____________________________________ ) ACCELGOV, LLC , ) ) P laintiff, )

) 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 G eneral Services Administration’s (“GSA”) contract award to Defendant

- Intervenor, Technical and Management Resources, Inc. (“TMR”). Plaintiff, the Government, and TMR have all filed M otions for
J udgment on the A dministrative R ecord. 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 redaction s 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.2 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. 2 6

. Advanced Alliant Solutions Team (“AAST”) , which is a joint venture between TMR and 22nd Centur y Technologies, Inc. (“22nd Centur y ”), is the incumbent contractor currently provid ing 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 , represent ing that it “work s closely with 22nd Century” in performing the con tract 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 sc ope 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 description s 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. A dmin

. R

. at 34, ECF No. 27. Plaintiff contends that, although TMR was th e managing partner o f the joint venture with 22nd Century that is AAST , it performed a very small percentage of the work under the Past C ontract s . ECF No. 26 ¶¶ 110

– 12 ; ECF No. 27 at 35. Rather, based on the declaration of 22nd Century’s President and th e attached
t ask or der l ead r equests , 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 Satvinder3

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
A dministrative R ecord 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 cont racts, to describe the basis for that denial. Ex. 1 to Pl.’s Mot. to Conduct Disc. & Suppl. A dmin. 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 decla ration and accompanying attachments . ECF No. 28 at 3. Plaintiff claims these documents “further demonstrate how little work TMR performed on the incu mbent contract and the NAWCAD Contract.” Id. DISCUSSION
I. Standard for Granting Leave to Conduct Discovery in a Bid Protest It is well settled that i n 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 , c ourts shoul d 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.4

731, 735 (2000), aff ’ d , 398 F.3d 1342 (Fed. Cir. 2005) ). S up plementation 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.’” Al aska 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 , ” i d. , 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)

. T he 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 c an be developed outside of the record . ECF No. 28 at 3. In response, Defendant and TMR argue that discovery and5

supplementation are unnecessary because even if Plaintiff receives the answers it expects to receive from TMR, it will be in sufficient to supp ort 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, a t 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. T he 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 st atement or explicit contradiction is not necessarily required to justify a request for limited discovery. Alaska Structures , 144 Fed. Cl. at 86

. E vidence that TMR omitted information from its proposal , or included inaccurate information, provide s 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, AR6

2049, 2053, when allegedly 22 nd 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 w here the RFQ s tated 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 spe culation to support its request. To demonstrate that discovery is warranted, Plaintiff cites to Mr. Singh’s declaration and its accompanying attachments

. See ECF No s . 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 stati stics 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 question s that must be resolved on the merits. At this stage, however, Plaintiff has made a col orable allegation of material misrepresentation and provided a t 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.7

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 propose d discovery is limited and tailored t o obtaining information relevant to Plaintiff’s mater ial misrepresentation claim. The discovery consists of only four interrogatories requiring TMR to explain more fully its involvement in the Past Contracts , including identifying th e 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, t he 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 2 8 , 2022. At this time, the Court does not see a reason to alter the current brie fing 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). The8

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 forthc oming discovery
responses . TMR shall file with the Court its answers to Plaintiff’s interrogatories (ECF No. 28

- 1) by no later than December 2 8 , 2022. This opinion and order will be unsealed in its entirety after January 3 , 202 3 , 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) sup porting the party’s request for redaction. SO ORDERED

.

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