“Bid protests are functions of a complex web of statutes, regulations, rules, and case law, which prescribe, in part, exactly which documents the government must submit as part of the record. Depending on where a protester files, the record may include different documents.
At GAO, the record is referred to the documents produced as part of the Agency Report, which, by regulation, must include:
- the contracting officer’s statement of the relevant facts (including a best estimate of the contract value), a memorandum of law, and a list and a copy of all relevant documents, or portions of documents, not previously produced, including, as appropriate: the bid or proposal submitted by the protester; the bid or proposal of the firm which is being considered for award, or whose bid or proposal is being protested; all evaluation documents; the solicitation, including the specifications; the abstract of bids or offers; and any other relevant documents…”
“Put differently, in protests filed with GAO, the government gets to curate the documents that are to be included in the Agency Report based on what documents it believes to be “relevant” to the protest grounds. Protesters may file an ‘objection to the scope of the [government’s] proposed disclosure or nondisclosure of documents.’[3] Protesters, however, don’t know what they don’t know regarding which documents might exist and what lies behind certain redactions. Further, GAO decisions regarding the scope of the record on review, i.e., the documents the government considers relevant to the protest grounds, generally are protected, leaving protesters with little to analogize to or distinguish from when engaging in a document request battle with the government.
At COFC, the record and the battle over it (or lack thereof) is quite different. In particular, COFC is required to base its review on ‘”the full administrative record that was before the [government decision maker] at the time he made his decision.”’[4] COFC’s case law is quite clear: the government ‘does not possess the discretion’ to curate the record based on what documents it believes to be relevant to the protest grounds.[5] Accordingly, in a bid protest before COFC, the rules require—and, thus, the government typically files—a complete and unredacted copy of each document that was part of the procurement. Consequently, the parties typically do not get into disputes over the contents of the record…” Read the full article here.
Source: Should You File Your Bid Protest Before GAO or COFC: For the Record, the Record Can Make All the Difference – By Katherine Burrows and Eric Valle, September 7, 2021. JD Supra.
