By: Mary Pat Buckenmeyer

Assuming you have filed a timely bid protest that meets the various procedural requirements at one of the three bid protest forums – the procuring agency, the U.S. Government Accountability Office (GAO), and the U.S. Court of Federal Claims (COFC) – the question becomes “what happens now?” The answer depends based on the forum in which the protest was filed. Previously, we discussed what happens at the agency level and at GAO. This blog explores what happens at the COFC.

The Filings

In sharp contrast to agency level protests where the entire protest file usually only consists of the protest and the agency decision, and to GAO protests where the procedures are more informal for the numerous filings, at the COFC, the procedures are formal court proceedings. Prior to even being able to file a bid protest at the COFC, a protester must fulfill a pre-filing notification 24- hours before the protest is filed.  See COFC Rules at Appendix C, Section II (providing the requirements and addressees of the notice).

Once the pre-filing notice is filed, there is the potential for numerous filings, including (but not limited to) the following, listed by party filing:

  • Bid Protest (filed by the Protester):
    • Civil cover sheet,
    • Filing fee,
    • Complaint,
      • If seeking to file under seal, proposed redacted version of same,
    • Application for temporary restraining order and/or motion for preliminary injunction,
      • If seeking to file under seal, proposed redacted version of same,
    • Motion to file documents under seal,
    • Motion for protective order and proposed protective order,
    • Notice of related cases (if applicable),
    • Corporate disclosure statement.
  • Parties join the case:
    • Agency through U.S. Department of Justice (DOJ): notice of appearance on behalf of the procuring agency,
    • Intervenor: motion to intervene as of right or permissive
      • Must also file corporate disclosure statement,
      • Sometimes this is done orally.
    • COFC: rules on motion to intervene.
  • Protective Order:
    • COFC: if requested, the court issues a protective order,
    • Protester/Intervenor: applications for access to protected material.
  • Applications for TRO and/or Motions for Preliminary Injunction:
    • DOJ/Intervenor: file oppositions and responses,
    • Protester: may file a response,
    • COFC: issues opinion and order.
  • Document Production/Motions to Supplement:
    • DOJ: agency/contract file documents are produced through the Administrative Record (AR),
    • Protester: to the extent a document is not included, may submit a motion to supplement the AR,
    • DOJ/Intervenor: may oppose any motion to supplement,
    • COFC: decision on any document disputes.
  • Motions for Judgment on the Administrative Record (MJARs):
    • Protester: files its MJAR,
    • DOJ/Intervenor: files MJARs and response to protester’s MJAR,
    • Protester: response/reply to DOJ/Intervenor MJARs,
    • DOJ/Intervenor: files reply briefs to protester’s response/reply.
  • Post-Oral Argument Briefs
    • Protester/Intervenor/DOJ – to the extent required, usually filed simultaneously.
  • Decision
    • COFC: issues written order and opinion,
    • Protester/DOJ/Intervenor: when COFC opinion is issued sealed (i.e., protected), the parties may be required to confer and submit a joint statement on proposed redactions,
    • COFC: issues public decision.

    This list represents some of the potential filings. In some cases, not all of these filings are needed. In others, all of these filings are needed. This also does not account for the Initial Scheduling conference called for by the assigned judge. The timing of each of these filings is dictated by COFC rules and specific orders by the judge during the course of the case.  

    Hearings and Oral Argument

    There is a potential for at least two oral arguments during any given COFC protest. The first being for any application for TRO and/or preliminary injunction and occurs soon after the protest is filed. The second oral argument occurs after the parties have filed their MJARs and any responses/replies.  

    The Decision

    Unlike the GAO where the Competition in Contracting Act of 1984 mandates that GAO issue a decision within 100 days of the date of the initial protest filing, or the agency where the FAR requires the agency to generally issue a decision in 35 days, there is no set timeframe within which the COFC must render its decision. The COFC is mindful of the need for speedy resolutions to bid protests and uses its best efforts to render a timely decision, usually a matter of 3 to 5 months, depending on schedules and the issues in the case.  

    The COFC reviews the agency’s action to determine whether the agency acted arbitrarily, capriciously, or not otherwise in accordance with the law.

    Appealing an Adverse Decision

    COFC decisions are binding on the parties and results in an enforceable order. This means there is a right to appeal to the U.S. Court of Appeals for the Federal Circuit. The COFC rules delineate the specific timeframe within which any appeal must be filed.  

    Do you have questions about filing an agency level bid protest? We can help answer those questions and plot your strategies. Contact us by calling 800-747-9354 or by emailing clientservices@dbllawyers.com. 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 headshot

    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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