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Wednesday, May 10, 2017

Government gets spanked for hitting a "new record"

There have been (at least) a couple of of good reviews of a recent decision of the Court of Federal Claims in the case Gallup, Inc. v USA.   In that case, the government got caught out making up an entry for the procurement record in the course of a procurement protest; in effect, attempting to create a new record.

Tch tch.

The court was, shall we say, livid:
The Contracting Officer, Ms. Julia A. DeLoach, signed the Memorandum for Record. While the document itself contains no date, the Index identifies June 24, 2016 as the date of creation for the Memorandum of Record. The Market Analysis contains an undated chart which summarizes the USSOCOM evaluation team’s comments on each RFI response. Pursuant to normal Court procedures, the Administrative Record also contains a “Certification of Contracting Office” signed by Ms. DeLoach affirming that “after careful review, the following documents constitute the record of administrative actions . . . .”

The Government notified the Court that on March 23, 2017 the Government learned the Memorandum for Record “had been prepared on or about December 15, 2016, i.e., after the agency had proceeded with the procurement. In order to “uncover the nature of the inaccuracy present in the administrative record and determine whether any action should be taken by this Court”, the Court issued an Order retaining the March 30, 2017 hearing date, and requiring “all those individuals who assisted in the production of the administrative record” to attend the hearing.

At the hearing, the Court questioned Ms. DeLoach while she was under oath. She further testified that she personally compiled the Administrative Record in this case without any assistance, including choosing the June 24, 2016 date for the Memorandum for Record in the Index, and signed the Certification of Contracting Office. Ms. DeLoach confirmed that the chart accompanying the Memorandum for Record was created on June 24, 2016 and that it accurately represents the contemporaneous comments of the USSOCOM evaluation team. When presented with the Memorandum for Record and asked to explain why she created the document, Ms. DeLoach responded:
[W]hen I received the pre-filing notice about December 13th, I said, uh-oh, if [Gallup] really file[s], I need to make sure my record [is] in good shape. […] I realized I had the [chart] with nothing that consolidated that or nothing that summarized that and I prepared the [Memorandum for Record] at that time, sir. I now know that [] was a huge mistake and I am deeply sorry that this has come to this. . . . [T]he timing was wrong.
Ms. DeLoach confirmed that the GRAP acquisition was already “underway” when she created the Memorandum for Record.

On March 30, 2017, immediately following the hearing, the Court issued an Order to Show Cause stating that “the Court contemplates the imposition of sanctions against the government and ordered the Government to explain why the Court should not require USSOCOM to pay Gallup’s attorney’s fees and costs associated with the prosecution of this bid protest. Knowingly providing inaccurate information to the Court is certainly grounds for sanctions.

A recent bid protest before this Court, Coastal Environmental Group Inc. v. United States, presents nearly identical facts to those here and further supports the imposition of sanctions in this case. An EPA official included a backdated document in the administrative record in order to “make it appear to anyone who read the document that she prepared and signed the document ten months earlier than she actually did.” The official then “attempted to cure her oversight by preparing . . . a Determination and Findings document.” Accordingly, Judge Margaret Sweeney of this Court imposed sanctions.

In this case, Ms. DeLoach also realized her record was incomplete and attempted to “cure her oversight” by preparing a Memorandum for Record nearly six months after USSOCOM made its set-aside decision.

The Court held a telephonic status conference at the request of the parties during which counsel for the Government indicated (and confirmed in writing the same day) that the parties had “reached an agreement in principle for USSOCOM to pay Gallup’s attorney fees and litigation costs . . . as contemplated by the Court’s order.” In addition, the Government noted that USSOCOM will:
issue guidance to its contracting staff emphasizing the importance of completeness, accuracy, and integrity in preparing records and accompanying certifications [and] is in the process of planning a training session . . . that will focus on issues of accuracy and ethics in preparing and certifying administrative records.
Therefore, the Government does not dispute the appropriateness of sanctions in this case.

The integrity of the administrative record, upon which nearly every bid protest is resolved, is foundational to a fair and equitable procurement process. While the Government has accepted responsibility for its misconduct, the importance of preventing a corrupted record cannot be overstated. The Court encourages USSOCOM to take all reasonable steps to ensure that its contracting office appreciates the necessity of conducting a well-documented, well-reasoned procurement and producing a meticulous and accurate record for review.

The Court will not tolerate agency deception in the creation of the administrative record.
The two reviews mentioned above are:
Government “Misconduct” in Preparing the Administrative Record Warrants Sanctions, and
Fed. Claims Warns SOCOM Over $45M Contract 'Misconduct'
It might be noted that Guam procurement law, consistent with the ABA Model Procurement Code, requires that "No procurement award shall be made unless the responsible procurement officer certifies in writing under penalty of perjury that he has maintained the record required by § 5249 of this Chapter and that it is complete and available for public inspection. The certificate is itself a part of the record." (5 GCA § 5250)

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