- Posted on: Jun 5 2021
As explained in prior postings, there are three forums that have jurisdiction or authority to hear bid protests: the procuring agency, the U.S. Accountability (GAO), and the U.S. Court Federal Claims (COFC). For further information on where to file, click here. To learn about filing an agency level protest, click here. To learn about filing a GAO protest, click here. Here we will discuss bringing a bid protest before the COFC, some procedural considerations, and a few of the advantages of using this forum over the procuring agency or the GAO. Dunlap Bennett & Ludwig’s team of bid protest attorneys are highly experienced and are ready to advocate on your behalf.
Established in 1855 as the United States Court of Claims, the COFC was granted bid protest jurisdiction through the Tucker Act, 28 U.S.C. § 1491, as amended by the Administrative Dispute Resolutions Act (ADRA) of 1996, Pub. L. No. 104-320, § 12, 110 Stat. 3870, 3874 (1996). The Tucker Act grants the COFC jurisdiction to decide any claim for damages against the United States founded upon the Constitution, an Act of Congress, agency regulation, or express or implied-in-fact contracts with the United States (with the exception of torts). Through the ADRA, the COFC was granted jurisdiction to hear pre- and post- award bid protests.
The Rules of the Court of Federal Claims (RCFC) provide the general rules for cases before the Court. Appendix C of the RCFC provides the procedural guidance specific to bid protests. Similar to the GAO, only an “interested party” has standing and may file a protest at the COFC. While not defined in the Court’s rules, the COFC has adopted a similar definition to that used by the GAO; namely, an actual or prospective bidder or offeror whose direct economic interest would be affected by the award of a contract or by the failure to award a contract.
Procedurally, any bid protest filed at COFC requires a pre-filing notification that must be submitted to the clerk of the COFC at least 24-hours in advance of filing the protest and must also be delivered to the U.S. Department of Justice (DOJ), Commercial Litigation Branch, Civil Division; the procuring agency’s contracting officer; and the apparently successful bidder/offeror. The RCFC, Appendix C at Section II.3 specifies the required contents of the pre-filing notice letter.
The COFC, like the GAO, allows for filing of the bid protest electronically through the Court’s national case management and electronic case filing system, NextGen CM/ECF (effective November 15, 2007, electronic filing became mandatory unless a specific exception is granted). The Court also requires a $402.00 filing fee (see updated fee schedule).
Unlike bid protests filed at the agency level or to the GAO, a COFC bid protest is filed as a formal Complaint. The Complaint must be accompanied by:
- A Civil Cover sheet,
- A Disclosure Statement in accordance with RCFC 7.1,
- A Motion for a Protective Order in accordance with RCFC, Appendix C, Paragraph 17, and Proposed Protective Order, A Motion to File the Complaint Under Seal and Proposed Redacted Complaint,
- Notice of Directly Related Case (if any) in accordance with RCFC 40.2.
Significantly different from agency level and GAO bid protests, and a potentially significant advantage, the COFC has no specific timeliness requirement. That is, with some exceptions, there is no set time within which the protester must file its protest. The exceptions are important and must be given due consideration.
First, any delay in filing can affect a protester’s ability to demonstrate the immediate and irreparable harm that is necessary to obtain injunctive relief. Second, in terms of a pre-award protest, the COFC has adopted timeliness considerations similar to the GAO. Any protester who has protest grounds against the terms of the solicitation or finds patent ambiguities in the solicitation but fails to raise those issues prior to the close of the bidding process, waives its ability to raise those issues later. That is, if you don’t protest those issues prior to the close of the bidding process – generally at proposal/quotation submission – you waive the right to raise those protest grounds later. This rule is further explained in the Court’s decision in Blue & Gold Fleet, L.P. v. United States, 492 F.3d 1309 (2007), and is sometimes referred to simply as the “Blue & Gold rule.” Third, in the context of a post-award protest, the COFC has recognized the doctrine of latches to bar a protest, finding that a protester cannot “sit on its rights” while the government moves forward. In these instances, it is not the passage of time that the Court analyzes, but instead it is the prejudice to the defendant (i.e., the Government) caused by the protester’s delay in filing. In those rare instances where there is no need to show the immediate or irreparable harm that is necessary for injunctive relief, the action must be commenced within six (6) years of the date the right of action first accrues. See 28 U.S.C. § 2401(a).
Another significant difference and potential disadvantage over an agency level or GAO bid protest, is that there is no automatic stay of contract award or performance at the COFC. Instead, a protester, through its outside counsel, can discuss the need for a stay pending the COFC’s decision, with DOJ counsel (DOJ counsel represents the procuring agency before the COFC). In those instances where the agency, through DOJ counsel, does not agree to a voluntary stay, a protester can file an application for a temporary restraining order (TRO) and/or motion for a preliminary injunction to stay the award or performance.
In reviewing an application for TRO and/or motion for a preliminary injunction, the COFC considers the following four elements: (1) protester’s likelihood of success on the merits; (2) whether the protester will suffer irreparable harm if the court withholds injunctive relief; (3) the balance of hardships to the respective parties; and (4) the public interest in granting such relief.
In terms of a decision, the COFC issues a binding decision for equitable relief in the form of a TRO, preliminary injunction, declaratory judgment, or permanent injunction. In some instances, the COFC may also grant reasonable bid preparation and proposal costs.
The COFC offers some key advantages over the other protest forums. The COFC’s ability to grant injunctive and declaratory relief offers aggrieved protesters the potential of an advantageous remedy that addresses the protest issues in a way that is binding on the procuring agency. The COFC’s flexibility on timeliness can be advantageous too, especially in those situations where the deadline to file has passed at the agency level or at GAO but where a protest can still be considered timely at the COFC. Further, COFC decisions are subject to appellate review – to the U.S. Court of Appeals for the Federal Circuit.
Dunlap Bennett & Ludwig’s team of bid protest attorneys are highly experienced and are ready to advocate on your behalf.
If you believe you may have a bid protest issue, contact us by calling 800-747-9354 or by emailing firstname.lastname@example.org. We can help you assess the issues and determine if filing a bid protest is right for you.
To learn more about bid protests, visit our Bid Protest Lawyer page.
To learn more about bid protests, click here, or contact our Government Contracts partner lead below:
Mary Pat Buckenmeyer is a partner at Dunlap Bennett & Ludwig. Mary Pat’s practice focuses on government contracts area with clients ranging from large defense contractors to small start-up contractors.
Mary Pat’s government contracts law experience includes a range of issues, including contract claims and disputes, compliance, counseling, requests for equitable adjustment, small business issues, size protests and appeals, Freedom of Information Act matters, contractor responsibility and integrity issues, prime-subcontract disputes, teaming agreements, joint venture agreements, non-disclosure agreements, and review of prime and subcontracts, contract terminations and settlement proposals, debarment and suspension, cost and pricing issues, and overseas contracting.
To learn how Ms. Buckenmeyer can assist with your legal needs, click here.
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Posted in: Government Contracts