Court of Federal Claims (COFC) Bid Protest Tips

Oftentimes, government contractors wonder whether to file a GAO protest or Court of Federal Claims (COFC) bid protest. As a CEO you should consider substantive and financial costs associated with each choice.

There are often situations when you should file versus going to the Government Accountability Office (GAO).

The following are some points for consideration when making your decision.

• GAO bid protests are the least expensive but not heard by a federal judge
• GAO protests are typically decided within 100 days whereas COFC bid protests may take a longer period of time
• Court of Federal Claims requires you to convince the court why it should halt the procurement as compared to the Automatic Stay at GAO (this means filing a Temporary Restraining Order or TRO with the Court.)
• High-level or high-dollar contracts typically are litigated at the Court of Federal Claims

Always weigh the pros and cons when making your decision. More importantly, make sure that you have a government contracts attorney that understands the bid protest regulations in both courts.

Filing a Court of Federal of Claims Bid Protest vs GAO has very important points to remember. If you do not have a bid protest lawyer (pro se), you are still responsible for complying with the Rules of the U.S. Court of Federal Claims (RCFC).

• When filing a Court of Federal Claims bid protest, keep in mind that employees of the court are not permitted to give you legal advice.
• All communications to the court should be in writing and directed to the Clerk of Court at the published address. Bid protest regulations forbid direct contact with the Judge or the chamber’s staff.

There are various opinions as to where contractors should file government protest cases. Some believe that having a federal court judge hear their case creates a sense of comfort. Companies with high-dollar contracts may see less risk by going to the Court of Federal Claims. However, regardless of whether the case goes to GAO or COFC, the real issue is the legal merits and facts supporting the allegations.

In GAO cases, contractors lose in over 80% of the cases filed. The statistics at the COFC vary from year to year.

When you are filing a COFC bid protest without a lawyer, you should consider the consequences of filing a frivolous lawsuit. Under limited circumstances, the court may order the losing party to pay the attorney’s fees and costs incurred by the prevailing party to defend the action.

Seeking COFC Help After Adverse GAO Bid Protest Decision

When companies file a bid protest at GAO, and receive an adverse decision, the contractor can still file a new protest at the Court of Federal Claims. This is not to be viewed as a direct appeal of the GAO decision. Instead, a new protest is filed. Court of Claims decisions will be binding on GAO.

When filing a Court of Federal Claims bid protest, you never want to draft a complaint as though you are directly appealing a GAO decision. This often occurs when government contractors retain corporate counsel to litigate bid protest actions.

• You should not file a bid protest asking the Court of Federal Claims to rule that GAO’s decision lacks a rational basis or was erroneous.
• The Court simply does not have jurisdiction to make such a decision. Therefore, the Court will dismiss your case.

Court of Federal Claims Decisions – Must Have Jurisdiction

As a matter of law, the court must consider jurisdiction before reaching the substantive merits of your bid protest decision.

• When the COFC is without jurisdiction to hear a case, it is corresponding without authority to issue a decision.
• Attorneys filing a Court of Federal Claims bid protest must always make sure to consider whether or not the court has jurisdiction to issue decisions. If not, you can waste thousands of dollars only to get your case dismissed.

Court of Federal Claims decisions have jurisdiction over many bid protests pursuant to the Tucker Act, 28 U.S.C. § 1491(b)(1). In a bid protest, the Court  reviews the agency’s procurement decision under the standards  of  the Administrative Procedure Act (“APA”), 5 USC 706, 28 USC 1491(b)(4) (2012);  Under the APA,  in a bid protest, the  Court may set aside an agency action that was “arbitrary, capricious, an abuse of discretion, or otherwise not in accordance with the law.”

These are points that your bid protest should contain. Typically, an agency action is arbitrary and capricious when the agency “entirely failed to consider an important aspect of the problem, offered an explanation for its decision that runs counter to the evidence before the agency or the decision is so implausible that it could not be ascribed to a difference in view or the product of agency expertise.

In US Court of Federal Claims opinions in bid protest cases, an experienced lawyer would assess whether the government contracting agency has examined the relevant data and articulate a satisfactory explanation for its action including a rational connection between the facts found and the choice made.

• Your bid protest must present a detailed factual basis for your case
• Although GAO may have ruled adversely against your, the Court of Federal Claims’ ruling is binding on the GAO – even though not a direct appeal.

Although bid protests are difficult to litigation, without the above strategy, your case is almost sure not to prevail. You cannot simply make general allegations in a bid protest without stating the legal and factual grounds to support it.

See How We Can Help With Appealing a COFC Decision to the Circuit Court

For additional help filing a Court of Federal Claims bid protest, call an attorney at 1-866-601-5518. Free Initial Consultation.