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What is the Contemporaneous Record in a Bid Protest?
By Major Jason W. Allen
Few acquisitions are perfect. When a bid protest is filed that challenges the agency’s conclusions or decisions, there is typically a need to explain the agency’s conclusions or decisions to defend against the protest. While additional documentation to explain the agency’s conclusions or decisions may be appropriate, that documentation should be consistent with the contemporaneous record and should not alter or revise the contemporaneous record. This article details that distinction for judge advocates practicing in this field of law.
A contemporaneous record consists of documents prepared prior to or at the time of the agency’s conclusion or decision. In order to be contemporaneous, the written record cannot be created after an agency’s acquisition decision, and one cannot simply paper the file to record what was orally decided, even in good faith. Moreover, failure to create a contemporaneous written record can lead to quasi-judicial or judicial scrutiny that can stop an agency in its tracks, creating unnecessary delay and additional costs to the agency. Finally, failing to adequately document an acquisition in a timely manner can erode the public’s trust in our procurement system and frustrate the agency’s effort to secure better values.
In Global Technical Systems (Global), the protester alleged the market research documents consisted of “post hoc” analysis and should be given little to no weight.1 In Global, the agency decided not to set aside the procurement for a small business and issued the solicitation.2 A protest at the Government Accountability Office (GAO) followed. The solicitation was not suspended, and it closed during the pending protest.3 The agency took corrective action, which included conducting additional market research, and the protest was dismissed.4 After conducting the additional market research, the agency announced that no changes would be made to the solicitation, which had already closed.5 Another protest followed with the protester asserting, in part, that little to no weight should be given to the “post hoc” additional market research because it was conducted after initial issuance of the solicitation.6 The GAO held that the additional market research was not “post hoc” analysis because it was prepared prior to the agency’s conclusion not to make any changes to the solicitation.7 Thus, a written record documenting the additional market research by the agency prior to the agency’s decision not to amend the solicitation was contemporaneous and adequate.
While the contemporaneous record consists of pre-decision documents, additional documentation providing more rationale for contemporaneous conclusions can be considered by the GAO during the pendency of a protest. In Rust Consulting, Inc., the GAO explained that
[i]n reviewing an agency’s evaluation, we do not limit our consideration to contemporaneously-documented evidence, but instead consider all the information provided, including the parties’ arguments and explanations. While we generally give little or no weight to reevaluations and judgments prepared in the heat of the adversarial process, post-protest explanations that provide a detailed rationale for contemporaneous conclusions, and simply fill in previously unrecorded details, will generally be considered in our review of the rationality of selection decisions so long as those explanations are credible and consistent with the contemporaneous record.8
The GAO held that the contemporaneous record documented the agency’s price realism conclusions, and that the agency’s post-protest statement simply further explained its conclusions.9 Therefore, post-protest explanations that provide a rationale for contemporaneous conclusions or fill in previously unrecorded details will be considered, while re-evaluations and post-protest judgments will be given little to no weight.
For example, analysis in a declaration or an agency’s post-protest statement that does not reflect contemporaneous evaluation judgments will be given little to no weight by the GAO.10 In Solers Inc., the GAO held that the analysis in the selection authority’s declaration was made in response to the protest and did not reflect the contemporaneous record.11 The GAO held that the latter of the selection authority’s two-part assessment in the post-protest statement, that a strength needed to both exceed the requirement and provide a quantifiable benefit, was not a contemporaneous judgment reflected in the record, and, therefore, gave little weight to the selection authority’s post-protest statement.12 In Solers Inc., the post-protest statement reflected an evaluation and judgment not reflected in the contemporaneous record, as opposed to an explanation of the judgment contained within the contemporaneous record.
However, EDC Consulting, LLC (EDC) stands for the principle that an agency must not alter or revise the contemporaneous documents as they existed at the time of the agency conclusion or decision.13 In EDC, the agency provided documents to the GAO in the agency report that were prepared or changed after award, including: the insertion of a multi-page table, the creation of several memoranda, and revisions to the technical evaluation report and best value tradeoff analysis.14 The GAO expressed concerns regarding the agency’s submission of altered documents and scheduled a hearing to address the agency’s preparation and submission of altered documents.15 The agency decided to take corrective action, and the GAO published the agency’s rationale, highlighting the impact on the integrity of the procurement:
[The agency] has previously acknowledged that documents had been created after award, specifically additional price realism memoranda and a memorandum detailing the methodology it used to evaluate price realism, and changed documents after award, specifically the Technical Evaluation Report (TER) and [Best Value Tradeoff Analysis]. Given the additions and the changes to documents after award, which [the agency] had previously submitted to [the] Government Accountability Office (GAO) as representative of the record at the time of award . . . . [The agency] has determined that the evaluation process and documents do not meet [the agency’s] standards for award.16
Thus, EDC makes it clear that the contemporaneous record consists only of the documents as they existed at the time of the agency conclusion or decision, and any further explanation of the contemporaneous record must not alter or revise those documents. An agency’s post-protest explanation is not part of the contemporaneous record, even though the GAO will consider post-protest explanation and rationale that is credible and consistent with the contemporaneous record and not a re-evaluation or judgment not documented in the record.
In summary, it is best for an agency to document its rationale and conclusions before or at the time an acquisition decision is made. Where an agency fails to document an acquisition decision contemporaneously, it is not advisable to change documents after the fact. Moreover, altering, creating, or revising documents, even if the changes accurately record the contemporaneous conclusions and decisions after a protest is filed, is improper. Once a protest is filed and the agency finds the record is not adequately and contemporaneously documented, it is advisable to take corrective action in the form of revisiting the acquisition decision and contemporaneously documenting the new decision at the time the new decision is made. TAL
MAJ Allen is the Group Judge Advocate for the Asymmetric Warfare Group at Fort Meade, Maryland.
Notes
1. Global Technical Systems, B-411230.2, 2015 CPD ¶ 335 at 17 (Comp. Gen. Sept. 9, 2015).
2. Id. at 4.
3. Id. at 6.
4. Id. at 5-6.
5. Id. at 7.
6. Id. at 17.
7. Id.
8. Rust Consulting, Inc., B-406410, 2012 CPD ¶ 173 at 4, n.2 (Comp. Gen. May 18, 2012), (internal citations omitted).
9. Id.
10. See Solers Inc., B-409079, B-409079.2, 2014 CPD ¶ 74 (Comp. Gen. Jan. 27, 2014).
11. Id. at 11-12.
12. Id.
13. EDC Consulting, LLC, B-414175.10, et al., 2017 CPD 185 (Comp. Gen. June 9, 2017).
14. Id. at 4.
15. Id.
16. Id. at 5.