Government Contracts Monitor

Bid Protests @ the Court of Federal Claims: The Judges’ Take

June 28, 2010

On June 15, 2010 a panel of judges from the U.S. Court of Federal Claims (CoFC) shared insights into bid protest litigation at the court. The CoFC is one forum in which a disappointed bidder can protest the award of a federal procurement contract.

As opposed to the Government Accountability Office (GAO) – the other forum in which protests may be filed – the CoFC follows more formal rules of trial practice. During the event, the judges discussed several areas of practice before the court which have been the subject of debate in recent years, including:

Automatic Stay Overrides – CoFC judges are not bound by CoFC precedent and individual judges have discretion to apply their own legal standards. An example of this occurs in “automatic stay” override cases. When a protest is filed at GAO, contract performance is often halted (“stayed”). See FAR 33.104. An agency can override the “stay” under certain conditions (e.g. necessity or national security) and interested parties may appeal the agency’s override decision to the CoFC. The CoFC judges, however, often apply different legal tests to determine whether the agency’s override decision was reasonable. Some judges require the agency to show there will be significant adverse consequences if a “stay” is continued while others require the contractor to prove that the agency acted in an arbitrary or capricious manner in overriding the stay.

Standing and Prejudice – A protester must have “standing” to bring a protest before the CoFC. Bid protest standing requires that a protester show a violation of procurement law that can be resolved judicially. A protester must also show that it has been “prejudiced” by the procuring agency’s allegedly faulty behavior – that without the agency’s mistake(s) the protestor would have been in position to receive the contract. However, in practice, demonstrating that a protester has standing usually collides with establishing prejudice. While there is significant overlap between these two areas, the CoFC may require the protester to demonstrate each separately.

Supplementing the Administrative Record – Unlike in typical litigation, the Court of Federal Claims’ factual review in bid protests is typically limited to the agency’s Administrative Record. In rare situations, however, the judges may seek to supplement the Administrative Record through hearings and/or depositions. This most frequently occurs in cases alleging agency bias, which necessarily calls into question the agency’s factual record. The court may also seek to supplement an Administrative Record that is confusing or missing important facts. However, the decision to supplement the record is highly dependent on the particular judge in the case.

Corrective Action – Finally, the judges discussed instances in which a protest is dismissed because the agency takes corrective action to correct the alleged procurement errors and whether the court has the power to regulate the corrective action to ensure the agency properly corrects the errors. The judges explained that when an agency chooses corrective action, the court loses bid protest jurisdiction and, therefore, cannot instruct the agency as to how it should restructure the procurement.

While there are certain advantages to lodging a protest at the CoFC, this approach also presents pitfalls not found at GAO. In addition to the topics addressed by the panel, a number of other subtleties inform the decision whether to pursue a protest at the CoFC. For more information about bid protest litigation at GAO or the CoFC, please contact Lindsay Simmons or Eric Whytsell in Jackson Kelly’s Washington D.C. Office.

Drafted by: Katie Calogero, Summer Associate

Attorneys

Lindsay Simmons