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Court Sanctions Government For Backdating Market Analysis

Posted on April 30th, 2017 by

On April 25, 2017, the Court of Federal Claims released a decision in Gallup, Inc. v. The United States, No. 16-1656C, which sanctioned the United States Special Operations Command (“Government”) for providing a key document in the administrative record that was backdated.  The document contained a market analysis to justify setting aside the procurement for small businesses.  The Government indicated that this document was created before the solicitation was issued for public bid.  The Contracting Officer also provided a “Certification of Contracting Office” affirming that “after careful review, the following documents constitute the record of administrative actions.”

It turned out that the Market Analysis was created after the protest was filed, but backdated to cover this up.  The Contracting Officer admitted this was a “huge mistake” to the Court:

[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.

The Court sanctioned the Government for providing a inaccurate and misleading document in the administrative record.  The Government did not oppose the appropriateness of sanctions and told the Court it will take action to prevent this from happening again, promising to “issue guidance to its contracting office emphasizing the importance of completeness, accuracy, and integrity of preparing records and accompanying certifications.”

The Contracting Officer certainly learned her lesson here.


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