Concise Guide to Bid Protests at the U.S. Court of Federal Claims
Thu Sep 9, 2021
Concise Guide to Bid Protests at the Court of Federal Claims
Government contractors have three options for bid protests, file a protest directly with the contracting agency, file a protest with the Government Accountability Office (“GAO”), or file a complaint with the Court of Federal Claims (“COFC”). All three options can yield a positive result, but protesters must choose the forum strategically because each has distinct advantages. By far the GAO is most popular with over 20 times more protests filed each year than at COFC.
There are reasons for this fact. For example, while a GAO protest can automatically stay award or suspend performance, a protester in the COFC has a high burden to overcome to receive a temporary restraining order, preliminary or permanent injunction. Protests are resolved much more quickly with the GAO than in the COFC. GAO protests are almost always less expensive.
The COFC is best suited for:
- complex questions of law or fact;
- second bite protests (after a GAO or agency protest);
- parties who did not file timely protests with the GAO; and
- parties seeking information in the Agency’s administrative record unattainable in a GAO or agency protest.
The COFC follows Federal Rules of Civil Procedure in the form of the Rules of COFC and take allegations as true, so it reduces challenges of the Government that protest allegations are speculative as can be made at GAO.
The bottom line is the COFC has more power because they are a court.
The COFC Procedure
The COFC is the most like traditional litigation, involving complaints, motions, and ultimately a binding decision – a permanent injunction.
No Automatic Stay But Power of Injunctive Relief
Unlike the GAO, the COFC protest does not grant an automatic stay or suspension of performance to cases, although COFC does grant permissive stays. In the COFC, a stay will occur if (1) the agency voluntarily stays the award or performance, or (2) the COFC grants the protestor a preliminary injunction or temporary restraining order. The court weighs four factors in granting injunctive relief: (1) immediate and irreparable injury, (2) likelihood of successful protest, (3) the stay is in public interest, and (4) hardship on the parties. These four factors are a high bar for a protestor and far from automatic. However, only COFC can issue an injunction that the Agency cannot ignore or override.
Filing a bid protest with the COFC begins by submitting a complaint. At least one day prior to filing a bid protest, the protestor must file a prefiling notice to the court, the awardee, the Department of Justice (“DOJ”), and the procuring agency’s contracting officer. Similar to GAO, the protestor can file the protest under seal and file a motion for a protective order. Redacted copies of protected filings are required and these public filings are then provided to the client. The procuring agency is represented by the DOJ in COFC proceedings. After the complaint is filed, the COFC assigns a judge to the case. The judge will reach out to the parties to hold a status conference and address the general issues (often within 24 hours of filing).
Bid protests are open to interested parties, not simply the protestor. Under Rule of Court of Federal Claims (RCFC) 24(a), the COFC must allow parties with an interest in the claim who file a timely motion to intervene. Interested parties can file a Motion for Judgement on the Administrative Record to dismiss the protestor’s claim. Awardees have no requirement to intervene, but often choose to do so to protect their own interests.
Administrative Record, and Appeal
Additionally, the DOJ creates an Administrative Record containing all solicitation and procurement documents, bids, agency source selection documents, memoranda, award letters, and all other pertinent documentation. Protesters in the COFC have greater access to these documents than protesters in the GAO, which allows for very little discovery.
Parties rarely undergo further discovery in the COFC, unless there is a substantial need for additional documentation in the Administrative Record. Administrative Records can be supplemented if they are missing proper documentation to make an informed decision, or the relevant documentation would not be found in the common Administrative Record documents.
After cross motions (similar to summary judgement) and oral arguments (at the judge’s request), the COFC judge makes a binding decision. Judges may not award fees, but protesters can recover for preparation and proposal costs. COFC decisions can be appealed to the U.S. Court of Appeals for the Federal Circuit. A qualifying small business that prevails in its protests may qualify for an award of fees under the Equal Access to Justice Act.
Most Common Reasons Contractors Protest at COFC
The COFC is often the more expensive and time-consuming option to file a bid protest, so why do contractors use the COFC at all? While the vast majority of bid protests are filed with the GAO, there are four main reasons contractors protest at the COFC.
Contractor received an unfavorable result from the GAO. If a contractor timely files a bid protest with the GAO, it automatically stays award or suspends performance. Although generally a quicker and cheaper alternative to the COFC, GAO decisions are non-binding. Experienced bid protest attorneys make GAO determinations, but those attorneys do not have the same checks and balances that federal judges have. Once a GAO attorney hands a protestor an unfavorable decision, the next step is to file in the COFC.
Contractor did not file a timely protest with the GAO. The statute provides that a protest needs to be filed within ten days of when the basis of protest or impropriety was
“known or should have been known,” whichever comes first. 4 CFR § 21.2. Also if the protestor does not meet required GAO requirements for timeliness, the GAO may not enact the automatic stay or suspension of performance under those rules. The COFC does not have such timeliness rules.
Parties seeking information in the Agency’s administrative record unattainable in a GAO protest. As mentioned above, protesters in the COFC have greater access to the documents in the entire Administrative Record than protesters in the GAO.
Complex law and facts. The Court is very good for complicated law and facts including issues of first impression and acquisitions with complicated evaluation criteria. For instance our firm has handled protests concerning pilot programs under specific statutes that were well suited to the court.
So while a COFC protest has an important role in the protest pecking order, it is not the “go to” protest forum. That is overwhelmingly the GAO.
Visit our Bid Protest page by clicking here.