THOMAS C. WHEELER, District Judge.
On April 4, 2014, Plaintiff Laboratory Corporation of America Holdings ("LabCorp") filed a post-award bid protest challenging the award of a contract by the Department of Veterans Affairs ("VA") to provide laboratory testing and analysis services at five VA Medical Centers in upstate New York. The VA requested offerors to submit prices for 1,575 different laboratory tests based upon the VA's "FY 2014 estimated utilization" level for each test. The VA included six evaluation factors and sub-factors in the solicitation, with price being the lowest factor in priority. The VA intended to award a Blanket Purchase Agreement ("BPA") against the successful offeror's current Federal Supply Schedule ("FSS") Contract. After evaluating the proposals on a best value basis, the VA selected Quest Diagnostics, Inc. ("Quest") for contract award. LabCorp is the incumbent contractor performing the tests at the five VA Medical Centers.
LabCorp challenges the VA's evaluation of proposals on a number of grounds, one of which is that the VA did not evaluate prices on a rational basis. LabCorp also alleges that the VA used an unstated evaluation criterion relating to how many of the 1,575 laboratory tests were included on each offeror's FSS contract. The evaluation method used by the VA allegedly resulted in an "apples and oranges" comparison where the agency evaluated the total price of a different number of tests for each offeror.
On April 11, 2014, the Government submitted the administrative record, consisting of two volumes containing 35 tabs and 2,365 pages. The administrative record included the detailed pricing schedules submitted by the offerors for each of the 1,575 tests. On April 28, 2014, LabCorp filed its motion for judgment on the administrative record, and attached the declarations of Mr. Ariel H. Collis and Ms. Sharon Williams Leahy. LabCorp offered Mr. Collis as an expert economist from Georgetown Economic Services, LLC to show the flaws in the VA's price evaluation, and to explain other approaches to the price evaluation that arguably would have been more rational. Mr. Collis' declaration contained extensive mathematical analysis of LabCorp's and Quest's price proposals. LabCorp offered Ms. Leahy as a fact witness to show that the VA historically had ordered far fewer tests in 2013 than the 1,575 included in the solicitation. The question presented is whether the Court should consider the Collis and Leahy declarations in reviewing the agency's decision under the circumstances of this case.
On May 12, 2014, the Government filed a motion pursuant to Rule 12(f) of the Rules of the Court of Federal Claims ("RCFC") requesting that the Court strike the Collis and Leahy declarations from the record. The Government argued, inter alia, that the declarations presented facts and opinions that the VA did not consider in evaluating proposals.
In opposition, LabCorp argues that the Collis declaration provides a quantitative analysis of LabCorp's and Quest's pricing information based exclusively on data already in the administrative record. Further, the Collis declaration purportedly corrects significant miscalculations in Quest's proposal that the VA failed to recognize. LabCorp contends that the Leahy declaration supplies historical data that the VA should have utilized in identifying the number of tests to include in the solicitation.
In bid protest cases, the focus of the judicial review should be "the administrative record already in existence, not some new record made initially in the reviewing court."
Under 28 U.S.C. § 1491(b)(4), the standards in the Administrative Procedure Act govern the judicial review of a protest challenging an agency's procurement action. These standards permit the Court to set aside an agency's action or decision that is "arbitrary, capricious, an abuse of discretion, or otherwise not in accordance with law." 5 U.S.C. § 706(2).
The Court examines the administrative record of the procurement to determine whether the record supports the agency's decision.
The Federal Circuit's holding in
The Court must balance its responsibility to ensure that a bid protest proceeding is not converted into a de novo review against its obligation to ensure that the position of both parties is fully understood.
The Court perhaps could extrapolate relevant information from the record without the Collis declaration, but Mr. Collis' quantitative analysis aids the Court in understanding the administrative record. Thus, omitting the declaration would handicap both Plaintiff and the Court. Surely, the Federal Circuit did not intend such an outcome in
It is well established that the focal point for judicial review should be the administrative record already in existence.
Supplementation of the administrative record with expert testimony is appropriate when necessary to assist the Court in understanding technical or complex information in a bid protest.
The question here is whether the Collis declaration should be admissible as expert testimony under Rule 702 of the Federal Rules of Evidence ("FRE"). Under FRE 702, "scientific, technical, or other specialized knowledge" may be admissible as expert testimony if it assists "the trier of fact to understand the evidence or to determine a fact in issue."
LabCorp has offered the Leahy declaration to show that the VA should not have included 1,575 tests in its solicitation, but should have included only the lesser number of tests that the VA Medical Centers actually ordered in 2013. It is well settled that a protester who has the opportunity to challenge a government solicitation term and fails to do so before the bidding process concludes waives the right to raise that challenge later in this Court.
For the reasons explained above, the Government's motion to strike the Declarations of Ariel H. Collis and Sharon Williams Leahy is GRANTED in part and DENIED in part. The Collis declaration is admitted, but the Leahy declaration is not admitted.
IT IS SO ORDERED.