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Turning Esch to Dust?: The State of Supplementation of the Administrative Record in Bid Protests Before the Court of Federal Claims

75 Pages Posted: 21 Aug 2010 Last revised: 17 May 2011

Robert A. Caplen

Hunton & Williams LLP

Date Written: August 5, 2010


Within the government contracts litigation framework, the bid protest, which can be brought both before the General Accountability Office (“GAO”) and the United States Court of Federal Claims (“Court of Federal Claims”), presents unique procedural, substantive, and evidentiary issues. This article focuses upon a particular facet of bid protest litigation that has become increasingly contentious over the past several years: balancing the necessity of supplementing an agency-assembled administrative record with preserving the arbitrary and capricious standard of review of bid protests in accordance with the Administrative Procedure Act (“APA”). Prior to 2009, numerous decisions from the Court of Federal Claims adopted a flexible approach toward supplementation, typically invoking Esch v. Yeutter, 876 F.2d 976 (D.C. Cir. 1989), as persuasive authority and justification. This practice, while criticized in a few Court of Federal Claims decisions, nevertheless remained consistent and helped formulate a body of law in the area of supplementation.

Last year, the Federal Circuit, in Axiom Resource Management, Inc. v. United States, 564 F.3d 1374 (Fed. Cir. 2009), addressed the issue of supplementation of the agency-assembled administrative record and reliance by the Court of Federal Claims on Esch. It ultimately determined that the trial court, which adopted a broad view of supplementation, abused its discretion and indicated in strong language its disapproval of Esch. This article dissects Axiom and analyzes the extent to which it has affected the practice of supplementation in bid protests before the Court of Federal Claims. The article asserts that Axiom is both unique and problematic, and contends that the decision has had very little effect upon the court’s approach toward supplementation. Indeed, it is apparent that Axiom has divided the Court of Federal Claims on the issue of Esch’s continued vitality. It theorizes that Axiom, which intended to limit the extent to which courts can supplement the administrative record in order to preserve the appropriate APA standard of review, actually opens the door to supplementation with greater frequency and provides courts with tools that can effectively shield their decisions from reversal on appeal.

Keywords: Administrative Law, Agency, Evidence, Contracts, Government Contracts, Practice and Procedure

Suggested Citation

Caplen, Robert A., Turning Esch to Dust?: The State of Supplementation of the Administrative Record in Bid Protests Before the Court of Federal Claims (August 5, 2010). Whittier Law Review, Vol. 32, No. 2, pp. 197-271, 2011. Available at SSRN:

Robert A. Caplen (Contact Author)

Hunton & Williams LLP ( email )

United States
202-955-1677 (Phone)

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