Contractors’ Decision to File a Bid Protest at COFC or GAO

Bid protest filed at the Court of Federal Claims is considered a new protest and not a direct appeal of the Government Accountability Office’s protest decision. When considering a contractors’ decision to file a Bid Protest at COFC or GAO, there are times when a contractor’s risk of forfeiting revenues can be detrimental. This is often the case when GAO denies a protest in favor of the government.

In the case of Rush Construction, Inc., involving a contract for the repair of a lock and barge canal in Florida, the United States Court of Federal Claims reviewed GAO’s denial of a protest and recommendation to the agency. The court suggested that GAO seemed to have premised its protest decision on inapposite case law on a “narrow focus on one relevant fact and a failure to consider a number of other relevant facts.”

This is proof that GAO bid protest decisions can fail legal scrutiny. When looking at a contractors’ decision to file a Bid Protest at COFC or GAO,  many companies accept GAO’s lower bid protest decisions as the end of the analysis. Some business also do not understand the procedural aspects of filing a bid protest at the Court of Federal Claims after GAO has made a decision.

Filing a Court of Federal Claims protest is not always a losing option. Although the Court often defers to GAO as experts in the federal procurement  process, the court still has the authority to make a contrary decision that has the legal binding effect on GAO.

In Rush, the United States Army Corps of Engineers, Jacksonville District simply relied on GAO’s recommendation. GAO recommended that the agency reject RUSH’s bid as non-responsive and terminate the contract for the convenience of the government.

• The agency then informed both RUSH and C&D that it would accept GAO’s recommendation, but it has delayed the termination of RUSH’s contract pending the outcome of the Court of Federal Claims protest.
• The Court decided that the GAO’s protest decision was not rational. In addition, because the agency adopted GAO’s irrational decision, the agency’s decision was also arbitrary and capricious.

The Law

The Administrative Procedure Act’s (APA) standard of review applies to the Court of Federal Claim’s bid protest jurisdiction to examine the agency’s decision. This means that the court will set aside an agency decision only if it is “arbitrary, capricious, an abuse of discretion, or otherwise not in accordance with law.” 5 U.S.C. § 706(2)(A) (2012).

The Federal Circuit has also ruled that “[u]nder the APA standard . . . ‘a bid award may be set aside if either (1) the procurement official’s decision lacked a rational basis; or (2) the procurement procedure involved a violation of regulation or procedure.”’ Banknote Corp. of Am., Inc. v. United States, 365 F.3d 1345, 1351 (Fed. Cir. 2004) (quoting Impresa Construzioni Geom. Domenico Garufi v. United States, 238 F.3d 1324, 1332 (Fed. Cir. 2001)).

• By adopting GAO’s recommendation in its bid protest decision, the Court of Federal Claims will be ruling on the Army Corps of Engineer’s ultimate decision and not necessarily GAO’s.

Court of Federal Claims Review of GAO Protest Decision

In a contractors’ decision to file a Bid Protest at COFC or GAO, it is important to understand that the court’s review of GAO’s bid protest decisions is generally  limited to the question of whether or not the decision is a rational one.  

• Note that GAO bid protest decisions do not have to be perfect. Instead, they must be rational.

Contractors’ Decision to File a Protest at COFC or GAO

The above is proof that GAO bid protest decisions are not always legally correct. Facts in the record that are not considered can be grounds for unreasonable decisions.

• When the stakes are high, then contractors should first understand that filing a bid protest at the Court of Federal Claims is not a direct appeal of GAO’s decision but a brand new protest.
• Agency automatic adoption of GAO protest recommendations is not the end of the case.
• When GAO’s decision is based upon a flawed legal analysis, there is a chance that government contractors can see a different outcome at the higher level.

See How We Can Help You in Bid Protest Cases

For more information or help when deciding to file a bid protest at the Court of Federal Claims or GAO, call our bid protest lawyers at 1-866-601-5518.