Margaret Nielsen

On January 14, 2013, a federal court sanctioned the government for failing to preserve a website advertising a $32 million Department of Veterans Affairs procurement, finding that the Federal Acquisition Regulations requiring the government to preserve documents related to procurements triggered its duty to preserve the website. Noting that the government’s conduct amounted to negligence or “culpable carelessness,” the court sanctioned the government by prohibiting it from relying on evidence about what the plaintiff saw on the website.

In Laboratory Corp. v. United States, Fed. Cl. No. 12-622C (Jan. 14, 2013), LabCorp alleged that, while the government claims that the General Services Administration’s e-Buy website (where bidders were required to submit their proposals) listed the submission deadline as 2 pm Eastern time, the formal solicitation available on the government’s website stated that the deadline to submit proposals was 2 pm Central time, and thus the agency’s rejection of the bid LabCorp submitted at 1:03 pm Central time was improper. The e-Buy website automatically purges webpage data when a procurement closes.

Despite the government’s claim that its duty to preserve the website text posted before the procurement closed had not been triggered because it could not have anticipated litigation at the time, the Court rejected this argument because the Federal Acquisition Regulations that require procuring agencies to maintain documents associated with the history of a procurement “recognize the prospect of having some form of litigation [] associated with a procurement” and preclude the government from claiming that its duty to preserve had not been triggered.

This opinion shows that a government agency’s duty to preserve may be triggered by a regulation, even before a particular lawsuit may be anticipated, where the regulation itself anticipates litigation concerning the agency’s conduct.