GW Law Faculty Publications & Other Works

Document Type

Brief

Publication Date

2026

Status

Accepted

Abstract

This is an amicus brief in support of a petition for rehearing (and rehearing en banc) in Syneren Technologies Corp., et al, v. United States (No. 2024-1424). Amici are law professors interested in ensuring that bedrock principles of administrative law, including Administrative Procedure Act (“APA”) standards, are applied to ensure that federal agencies act with integrity, accountability, and engage in fair and regular processes that do not subject contractors to arbitrary and capricious government action.

The brief advocates for U.S. Federal Circuit en banc rehearing on the issue of whether a federal agency can unilaterally, and without leave of the U.S. Court of Federal Claims (“COFC”), change the administrative record during ongoing bid protest litigation over that record. The brief also encourages the Court to revisit unnecessarily broad pronouncements made by the panel as to the inapplicability of foundational principles of administrative law to government procurement decisions. Among other things, the brief discusses the Federal Circuit's embrace of the relevant aspects of Chenery and Regents in bid protest litigation for the important administrative law principle that judicial review of agency action is limited to the grounds that the agency invoked at the time it took the action.

The brief was prepared by Travis Mullaney.

GW Paper Series

2026-33

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