What are the advantages and disadvantages of offering expert opinions in your bid protest? In order to win your bid protest, this article explores the rules behind expert opinions on complex or technical subjects in bid protests before either the Court of Federal Claims (COFC) or the Government Accountability Office (GAO). Getting an expert admitted to testify in your protest is easiest at the GAO and hardest at the COFC.
Court of Federal Claims Focus on the Administrative Record
It is generally more difficult to get your expert opinion testimony admitted at the COFC, but bringing your expert to explain difficult to understand technical issues will strengthen your case on certain protest issues. Although the “focus of judicial review of agency action remains the administrative record, which should be supplemented only if the existing record is insufficient to permit meaningful review,” supplementing the existing record may be the difference between a successful or unsuccessful bid protest. Guzar Mirbachakot Transp. v. United States, 104 Fed. Cl. 53, 61 (Fed. Cl. 2012).
Generally, the COFC will allow experts to help with technical or complex issues that will assist the trier of fact. Mike Hooks, Inc. v. United States, 39 Fed. Cl. 147, 158 (Fed. Cl. 1997). Expert statements have typically been allowed to when it is necessary “for a full and complete understanding of the issues.” Blue & Gold Fleet, LP v. United States, 70 Fed. Cl. 487, 494 (Fed. Cl. 2006), aff’d sub nom. Blue & Gold Fleet, L.P. v. United States, 492 F.3d 1308 (Fed. Cir. 2007).
COFC Applies Daubert Standard
To help determine whether an expert will give a more complete understanding of the issues, experts at the COFC are subject to the Daubert standard. Daubert v. Merrell Dow Pharm., Inc., 509 U.S. 579, 592, 113 S. Ct. 2786, 2796, 125 L. Ed. 2d 469 (1993). Under this standard, the Court has broad discretion to ensure that an expert (1) is qualified, (2) has reliable reasoning or methodology, and (3) will provide testimony that will assist the trier of fact. The Court often uses its broad discretion over whether to admit or exclude expert opinions to look beyond the expert’s resume and examine (voir dire) an expert to determine the expert’s adequacy.
In the context of bid protests, expert opinions are generally used to help the court understand a difficult technical component. For example, in Guzar Mirbachakot Transp. v. United States, Guzar Mirbachakot Transportation (GMT) used an expert’s opinion to win a bid protest over the timeliness and responsiveness of GMT’s bid proposal. Guzar. In 2011 the United States sought offers for trucking services in Afghanistan. This particular solicitation accepted electronic offers of Microsoft Word Documents and PDF files. GMT timely submitted its offer with Microsoft Word and PDF files compressed into a zipped folder. However, the government informed GMT that it did not accept zip folders and deemed GMT’s bid unresponsive.
GMT protested the award at the COFC, where it was permitted to supplement the Court’s administrative record with an expert witness that testified that the zipped folder did not change the file format. The Court, after the expert’s opinion, held that GMT had timely submitted the correct format, and sustained GMT’s bid protest.
Government Accountability Office Is Less Strict on Admission of Expert Testimony
The GAO, as an agency, operates differently than the COFC. The GAO is less stringent on experts’ admission of evidence than the COFC, and the GAO generally accepts opinions of expert witnesses and admits experts to the GAO-issued protective order so long as the experts are timely.
When encountering complex or technical information during a bid protest, it is crucial to have an expert testify before the GAO, because getting your expert’s opinion before GAO could pay off immediately, or down the road.
Advantages at GAO
The GAO admitting your expert’s opinion into the protest record has a few advantages. First, it gives your expert a chance to explain the technical complex details of your protest grounds, giving the GAO an opportunity to understand why it should sustain your bid protest.
Next, admitting your expert’s opinion at the GAO may have a hidden benefit if the GAO does not sustain your bid protest. Admitting your expert’s opinion at the GAO will cement the opinion in the administrative record, meaning the testimony will remain in the record if you decide to pursue the bid protest at the COFC later. Moreover, COFC judges are often more willing to include materials into the record if they were part of a preceding GAO proceeding.
Most importantly, the GAO allows for the recovery of expert fees. Beyond the advantage that having your expert’s opinion will provide, if the GAO sustains your bid protest, you are entitled to reasonable fees for your expert witness.
Conclusion
Use of an expert can be a powerful tool in a successful bid protest. Expert opinions can provide a technical advantage that may just be the difference in the success of your next bid protest. However, using an expert at the GAO is going to be a much easier task than at the COFC. Yet another reason why most bid protests are filed at the GAO rather than the COFC. If you have any questions about bid protests of federal contracts or solicitations, please contact the Oles bid protest team of Howard Roth at roth@oles.com or Joey Haughney haughney@oles.com.
