CEO Tips for Litigating Bid Protests at GAO, Court of Federal Claims and Appealing to Federal Circuit Court

Theodore P. Watson, Esq.

When government procurement agencies do not comply with the terms of the solicitation or violate applicable procurement law, the unsuccessful offeror can file a bid protest. The protest must specifically challenge the agency actions decisions and must also meet certain procedural requirements. Federal contractors should be aware of the various levels of litigation that can protect their legal rights after contract award.

Whether you file an agency-level protest, a Government Accountability Office level protest (GAO protest) or Court of Federal Claims bid protest (COFC), you must be cognizant of the various procedural guidelines. Certainly, each forum is different and have their own specific rules. FAR protest rules do not cover specific litigation rules and bid protest appeal guidelines.

As the CEO of a government contracting firm, making the decision of where to file a protest or whether to appeal a bid protest decision from the Court of Federal Claims to the US Court of Appeals for the Federal Circuit can be a huge undertaking. However, given the probability of securing millions of dollars for your company, it may be worth the effort and cost. Nevertheless, and regardless of where you choose to litigate your bid protest case, having an experienced attorney that has a substantive understanding of the issues is critical to any chance of prevailing.

Where Can You File Your Bid Protest Case?

The majority of government contractors understand the various levels of bid protest litigation. The problem is usually understanding the pros and cons of filing at a specific level.

The three common places to file a bid protest case are:

1. Filing an agency protest
2. Filing a GAO protest
3. Filing a Court of Federal Claims bid protest.

Agency level bid protest: Filing an agency protest simply means asking the CO to reverse themselves. The reality is that most contracting agencies do not sustain an agency-level protest. However, when there is a denial, you can still file at the Government Accountability Office within 10 days. You want to file an agency bid protest within 10 days of when you knew or should have known of the adverse action or reason for the protest.

GAO protest:  Bid protest regulations allow you to file a protest at the Government Accountability Office either after the agency protest decision or directly. GAO bid protest timelines require you to file within set deadlines. There is no room for error. 

• Failure to file within the specified timeline will get your case dismissed. GAO and all courts do not have much discretion here.

Protests based upon alleged improprieties in a solicitation which are apparent prior to bid opening or the time set for receipt of initial proposals shall be filed prior to bid opening or the time set for receipt of initial proposals. In procurements where proposals are requested, alleged improprieties which do not exist in the initial solicitation but which are subsequently incorporated into the solicitation must be protested not later than the next closing time for receipt of proposals following the incorporation. If no closing time has been established, or if no further submissions are anticipated, any alleged solicitation improprieties must be protested within 10 days of when the alleged impropriety was known or should have been known.

The exception to the GAO bid protest timeliness rule is when you challenge a government contract award for a competitive proposal and you request a debriefing.

Intervenors

When you are awarded a government contract, you can protect your rights by becoming an intervenor in the bid protest case. This applies to virtually all levels above the agency level. You must always meet the interested party status.

Tip: You should be careful of this rule. Not all debriefings will pause the ten-day bid protest filing requirement.

• Only debriefings that are timely requested and required will temporarily toll the 10-day filing requirement. 

Whether or not you decide to file a GAO bid protest, you must carefully assess the merits of your case. Common mistakes made include:

• Merely disagreeing with the agency award decision
• Failing to state a legal and factual basis for the protest
• Filing a bid protest for issues that GAO has no jurisdiction to hear

Can You Appeal a GAO Bid Protest Decision to COFC?

 First, there is no direct appeal of a GAO protest decision. However, if you happen to receive an adverse GAO decision, you can file a new bid protest at the Court of Federal Claims. 

Whether you are filing pre-award or post-award bid protests at the COFC. You must be represented by an attorney and you must prove that the court has submitter jurisdiction to hear the case. Only interested parties can participate or file a COFC protest.  The Court has jurisdiction to hear cases by interested parties objecting to a solicitation issued by a Federal agency or bids or proposals for a proposed contract or to a proposed award or the award of a contract. Additionally, the court has jurisdiction over any alleged violation of statute or regulation in connection with a procurement (or proposed procurement).

Questions arise as to whether you can bring up new issues when filing a COFC protest. The initial thought would be that since there was no direct appeal of a GAO decision, then you should be able to.  The government will more than likely try to get an issue dismissed at the Court of Federal Claims.

• When you file a Court of Federal Claims bid protest, be mindful that the court will review the previous GAO protest file. 
• As a government contractor, you should approach filing a new bid protest at the Court of Federal Claims with caution.
• When you get a negative GAO protest decision, you should immediately seek legal counsel and consider your options. 

The Court has recently scrutinized cases as somehow being untimely because the protestor has waited too late to file. There is no formal timeline to file a COFC bid protest. However, given recent rulings, you should be mindful of the brutal decisions.  

There are federal circuit court cases that arguably extend any presumed deadlines at the COFC. However, your bid protest attorney should examine these possibilities and strategically approach how to file the case. 

It is almost certain that if you wait more than a month to file a subsequent bid protest at the Court of Federal Claims, the DOJ attorney (on behalf of the agency) will try to get the protest dismissed for lack of jurisdiction. 

• Your company should also be mindful that although there is no protest filing deadline at the Court of Federal Claims per se, the government has a deadline weapon called the “laches defense.”
• The laches defense can be challenged in the right situation

Filing a bid protest at the Court of Federal Claims is more expensive than the previous forums. However, contractors tend to use this legal forum when the stakes are high ( expensive contract awards). The process is similar to a traditional federal court. In addition to having federal judges preside over your case, you also have Department of Justice attorneys who will represent the contracting agency.

When Can You Appeal a COFC Bid Protest Decision to Federal Circuit Court of Appeals

When the Court of Federal Claims rules against you in a bid protest case what can you do? The options are very narrow. First, you can submit some level of reconsideration. Second, you can appeal the bid protest decision to the Federal Circuit Court of Appeals. 

To appeal a bid protest case or Contract Disputes Act case to the US Court of Appeals for the Federal Circuit, you must establish jurisdiction for the court. 

• Appealing your bid protest does not mean that the court hears the merits of the case again.

Standard of Review

The Federal Court of Appeals reviews the Court of Federal Claims’ bid protest ruling on the parties’ cross-motions for judgment on the administrative record de novo, applying the same standard of review as the trial court. Glenn Def. Marine (Asia), PTE Ltd. v. United States, 720 F.3d 901, 907 (Fed. Cir. 2013). 

The Court uses the same rules for Cross- motions for judgment on the administrative record are governed by Rule 52.1(c) of the Rules of the United States Court of Federal Claims (“RCFC”). See RCFC 52.1(c). 

In deciding these motions, the court considers “whether, given all the disputed and undisputed facts, you or the government has met its burden of proof based on the evidence in the record.” A & D Fire Prot., Inc. v. United States, 72 Fed. Cl. 126, 131 (2006) (citing Bannum, Inc. v. United States, 404 F.3d 1346, 1356 (Fed. Cir. 2005)). 

There must be a showing of not just error at the lower trial court but also the error should be reversible or worthy of sending the case back to the COFC with instructions.

FAR protest rules do not specifically address appellate cases at the Federal Circuit Court of Appeals. Thus, trying to find procedures in the FAR would be fruitless.

As the United States Supreme Court has explained about § 706(2)(A) review: 

Appealing your bid protest means that this appeals court must consider whether the COFC decision was based on a consideration of the relevant factors and whether there has been a clear error of judgment in your case. 

• The court is cannot substitute its judgment for that of the agency. 

At the end of the day, the bid protest process can be tricky and confusing. The rules are in place for you to exercise your rights when the facts and law are both on your side. Making to the decision to file a protest or appeal a bid protest decision is a tough one for you to make.  However, with adequate protection of having legal counsel that understands the substantive issues, you stand a chance of prevailing.

When you are trying to decide how a government award decision impacts your bottom line, call our bid protest litigation and appeal attorneys at Watson & Associates, LLC at 1-866-601-5518.