Supplementing a Bid Protest Record in a Post-Axiom World

10/20/2011

Many practitioners believe that the Federal Circuit’s recent decision in Axiom Resource Mgmt., Inc. v. United States, 564 F.3d 1374 (Fed. Cir. 2009), greatly restricted the ability of courts to supplement an administrative record in a bid protest action. The court held in that case that “supplementation of the record should be limited to cases in which ‘the omission of extra-record evidence precludes effective judicial review.’” The court expressly disavowed Esch v. Yeutter, 876 F.2d 976 (D.C. Cir. 1989), a decision on which many courts and practitioners had relied to justify freely supplementing the administrative record.

The Axiom court explained: “The purpose of limiting review to the record actually before the agency is to guard against courts using new evidence to convert the arbitrary and capricious standard into effectively de novo review.” Thus, the Axiom court held, courts should focus on the administrative record compiled by the government agency, “which should be supplemented only if the existing record is insufficient to permit meaningful review consistent with the APA.”

The Axiom court’s rejection of Esch was significant. Courts and practitioners had previously relied heavily on Esch - and its multifactor analysis - in justifying the supplementation of an administrative record in a bid protest case. After Axiom, courts and practitioners have understandably struggled to determine the appropriate circumstances for supplementing the record. Despite the new standard, however, courts have continued ordering supplementation, finding various reasons why the requested documents or materials are necessary “to permit meaningful review.” This article explores a few of those reasons.

Originally printed in The Procurement Lawyer, Volume 47, Number 1, Fall 2011. © 2011 by the American Bar Association. Reproduced with permission. All rights reserved. This information or any portion thereof may not be copied or disseminated in any form or by any means or downloaded or stored in an electronic database or retrieval system without the express written consent of the American Bar Association.

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PDF - Post-Axiom_World.pdf

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