Defining the administrative record is a key aspect of litigating bid protests before the U.S. Court of Federal Claims. From the time a protest is filed, the parties must carefully navigate which evidence may be considered by the court in deciding the protest and which must be excluded. In many instances, the parties’ understanding of what evidence should be before the court evolves throughout the proceedings. Parties thus frequently find themselves needing to introduce additional extrinsic evidence to support their allegations.

The court’s supplementation case law provides a rough framework for the type of extrinsic evidence that may properly be admitted to the administrative record, but there still is uncertainty as to whether extrinsic evidence regarding competitive prejudice should be admitted to the administrative record or only to the court’s record. The answer to this question has the potential to affect the outcome of a bid protest, as the court is permitted to decide the merits of bid protest based solely on the evidence in the administrative record.

Originally published in Law360 on February 9, 2017.