US Court of Federal Claims Protest vs GAO

The US Court of Federal Claims (COFC) has jurisdiction to hear a government contract bid protest due to the Administrative Dispute Resolution Act of 1966 (ADRA).

As a matter of practice, the COFC does not lose its jurisdiction to hear your protest simply because another bidder files a separate protest at the GAO. However, you do not want to simultaneously initiate a bid protest at both the GAO and US Court of Federal Claims.

In addition, GAO protest decisions are not binding on the COFC.  However, when deciding bid protest cases, the court does give respect to previous decisions since the GAO does have specific government contracting expertise.

Why Does This Matter?

The U.S. Court of Federal Claims court can hear pre-award bid protests or post-award protests. Filing a bid protest at the Court of Federal Claims is more formal and is somewhat similar to a traditional court. There are federal judges that actually hear the merits of the case as compared to administrative attorney judges at the GAO protest level. 

At both levels, you must be an interested party and have legal standing to bring the lawsuit. These are nuances that a bid protest lawyer can help you with because these issues are often challenged by the agency during litigation. At the US Court of Federal Claims, there are certain pre-filing notices to the Department of Justice (DOJ) that must be sent before filing your bid protest complaint.

In order to withstand a dismissal, you must at least show that the agency’s award decision was arbitrary, capricious, an abuse of discretion, or otherwise was not in accordance with the law.

• The key to this establishing the standard is to realize that government contracting agencies are given wide discretion to make their business judgment decisions.
• You must be able to get past this hurdle and show that the award decision was unreasonable and served no rational purpose.

What are the Main Differences between a US Court of Federal Claims Bid Protest Vs GAO Protest?

The primary difference between a Court of Federal Claims bid protest and a GAO protest is that the former requires filing in the court itself, while the latter involves an administrative appeal to the GAO.

Also, there are different requirements for each type of protest as well as deadlines for filing.

For example, although both require some form of bid protest is a legal challenge filed by a disappointed bidder who believes that the award of a government contract was unfair or improper. Two common venues for filing bid protests in the United States are the Court of Federal Claims (COFC) and the Government Accountability Office (GAO). While both venues provide mechanisms for resolving bid protests, there are several main differences between the COFC bid protest and the GAO protest:

1. Jurisdiction: The COFC is a federal court that has jurisdiction over bid protests and other claims against the federal government. On the other hand, the GAO is an independent agency that handles bid protests as part of its function to oversee the federal procurement process.

2. Timing: The timing requirements for filing a protest differ between the two venues. For COFC protests, a bidder generally has no time limit to file a protest. However,  the protestor can not simply wait forever. However, there are. some brutal decisions where the court ruled that the protestor simply waited too long and slept on its rights. In contrast, GAO protests must be filed within strict timelines, usually within 10 days of when the basis of the protest was known or should have been known.

3. Reviewing Authority: At the COFC, bid protests are heard by a judge, who evaluates the legal arguments and evidence presented by the parties involved. In the GAO protest process, protests are typically reviewed by attorneys and analysts who work for the GAO. They assess the issues raised in the protest and issue a recommendation to the contracting agency, but the final decision rests with the agency.

4. Remedy: The potential remedies available differ between the COFC and the GAO. At the COFC, if a protest is successful, the court can recommend a range of remedies, including injunctive relief, contract termination, or monetary damages. The GAO, however, can only make recommendations to the contracting agency. While agencies often follow the GAO’s recommendations, they are not legally binding, and the agency ultimately has the discretion to decide whether or not to follow them.

5. Cost: Filing a bid protest with the GAO is generally less expensive than filing a lawsuit at the COFC. The GAO protest process does not require formal legal representation, and the costs associated with preparing and filing the protest are relatively lower. In contrast, pursuing a bid protest at the COFC usually involves legal representation, which can increase the costs significantly. When cases are high risk and generally over 4 million in award value, contractors see if worth the risk to litigae a bid protest at the Court of Federal Claims.

It’s important to note that this information is based on the general characteristics of bid protests at the COFC and the GAO, but there may be specific rules and procedures that apply to individual cases. It is advisable to consult with a Court of Federal Claims bid protest attorney or legal expert for precise guidance when considering a bid protest.

Time is often a concern -one has to look at previous decisions to decide the chances of success.

Companies often want bid protest decisions fast. At GAO the court usually makes a decision within 100 days. Whereas, bid protests at the U.S.Court of Federal Claims have no deadline. In the COFC, there is no set timeline for decisions, but the process usually takes longer to resolve than 100 days, sometimes much longer. 

Note that:

• COFC bid protest proceedings are more formal in nature.
• The litigation process is more like traditional federal courts where the parties have to go through discovery and motions.
• AS a general rule, if you have a high-profile and complex case, contractors tend to go to litigate bid protests at the COFC compared to GAO.
• COFC does have a tendency to rule against the agency if there is a clear violation of procurement laws.

What are the benefits of filing a Court of Federal Claims Bid Protest Instead of a GAO Bid Protest?

The major advantage of filing a US Court of Federal Claims Bid Protest instead of a GAO Bid Protest is that the COFC has subject matter jurisdiction over procurement disputes. This means that if the contractor believes that an agency has violated federal procurement laws, then it can bring its case before the court and argue for relief from damages suffered as a result of. Benefits of Filing a Court of Federal Claims Bid Protest Instead of a GAO Bid Protest

1. Specialized Expertise: One of the key advantages of filing a bid protest at the Court of Federal Claims (COFC) is access to a specialized court that focuses exclusively on federal procurement disputes. The judges at the COFC possess a deep understanding of the complex landscape of government contracts, including procurement laws, regulations, and relevant case precedents. This expertise ensures that your case will be evaluated by knowledgeable professionals who are well-versed in the intricacies of federal procurement, providing you with confidence in the thorough examination of your protest.

2. Comprehensive Review: The COFC offers an in-depth review of procurement decisions. The court has the authority to scrutinize agency actions, evaluation processes, and compliance with applicable laws and regulations. This comprehensive examination allows the COFC to delve into the details of the procurement process, thoroughly analyzing whether the award decision was made in accordance with the stated evaluation criteria and adhered to the legal requirements. The COFC’s ability to conduct a more extensive review can be advantageous when your protest involves complex legal and factual issues.

3. Flexibility in Remedies: Filing a bid protest at the COFC provides flexibility in the types of relief that can be sought. In addition to seeking monetary damages, the COFC has the authority to grant equitable remedies, such as contract termination or reevaluation. This flexibility allows you to explore various avenues to seek redress, depending on the circumstances of your case. The potential for corrective action and re-solicitation of bids provides an opportunity to rectify flawed procurement processes and improve outcomes, which may not be available through the GAO bid protest process.

4. Preservation of Protest Rights: Filing a bid protest at the COFC can strategically preserve your protest rights for potential future disputes. The COFC’s jurisdiction includes the ability to toll bid protest deadlines, which means that if you initially file a protest at the COFC and the court lacks jurisdiction over certain issues, you can still preserve those issues for a potential future protest. This preservation of protest rights enhances your position, providing you with additional opportunities for review and redress should the need arise.

5. Extensive Discovery: The COFC allows for more extensive discovery compared to the GAO bid protest process. Discovery enables parties to obtain relevant information, documents, and evidence from the opposing party or third parties involved in the procurement process. This access to extensive discovery can be beneficial when there is a need to gather substantial evidence or when complex issues require a deeper examination of the facts surrounding the procurement decision.

6. Binding Decisions: Unlike the GAO bid protest process, where recommendations are issued, the COFC has the authority to issue binding decisions. This means that if the COFC rules in your favor, the decision is binding on the parties involved and the government agency must comply with the court’s ruling. This binding nature of the COFC’s decisions can provide a stronger sense of finality and assurance that your protest will result in concrete outcomes.

7. Greater Control over the Proceedings: Filing a bid protest at the COFC allows for greater control over the proceedings compared to the GAO process. The COFC follows formal litigation procedures, including rules of evidence and formal court hearings, providing a structured and controlled environment for presenting your case. This can be advantageous if you prefer a more formal and controlled setting or if your protest involves complex legal arguments that may benefit from a structured courtroom environment.

It’s important to note that the decision to file a bid protest at the COFC or the GAO depends on various factors, including the nature of the procurement, desired outcomes, timing considerations, and the specific circumstances of your case. Consulting with experienced legal counsel can help you navigate these factors and make an informed decision that is best for you. Additionally, experienced counsel can help to prepare a persuasive protest and provide guidance throughout the entire process. 

How to File a Bid Protest at the US Court of Federal Claims?

Filing a bid protest at the U.S. Court of Federal Claims (COFC) involves the following steps:

1. Engage Legal Counsel: Due to the complexity of the process, it’s highly recommended to engage an experienced government contracts attorney to represent your interests.

2. Prepare a Complaint: This document outlines your case against the government agency, including the facts, law, and argument supporting your claim. It should clearly state why the award decision is incorrect and how you’ve been harmed by the decision.

3. Filing the Complaint: Once your complaint is prepared, your attorney will file it with the COFC. This usually involves paying a filing fee.

4. Service of the Complaint: After filing the complaint with the court, the attorney will serve the complaint on the U.S. Department of Justice, the contracting agency involved, and the contract awardee.

5. Government’s Response: The government will typically file a motion to dismiss or a response to your complaint. This could be followed by a period of discovery, where both sides gather evidence.

6. Oral Arguments and Decision: The court may hold oral arguments and then will issue a decision. If the decision is in your favor, the court may grant injunctive relief, directing the agency to correct its decision. If not, you can appeal the decision to the U.S. Court of Appeals for the Federal Circuit.

It’s essential to consult with a qualified attorney to navigate these processes effectively.

Filing a New Protest at the Court of Federal Claims After an Adverse GAO Decision

If a disappointed bidder receives an adverse decision from the Government Accountability Office (GAO) on their bid protest, they have the option to file a new protest at the Court of Federal Claims (COFC). The ability to seek review at the COFC is available to bidders who are not satisfied with the GAO’s decision or the remedy provided.

Here are some key points to consider when filing a new protest at the COFC after an adverse GAO decision:

1. New Jurisdiction: The COFC has separate jurisdiction from the GAO, which means that filing a protest at the COFC is essentially starting a new legal proceeding. The COFC is a federal court, and it will independently review the bid protest based on its own procedures and standards.

2. New Arguments: When filing a protest at the COFC after an adverse GAO decision, it is crucial to present new arguments or issues that were not raised or fully addressed during the GAO protest. The COFC generally does not consider arguments that were already decided by the GAO, so it’s important to develop fresh legal arguments to support the case.

3. Timelines: It’s essential to be mindful of the timelines for filing a protest at the COFC. The COFC has its own deadline for filing protests, and it is typically within a certain number of days after the basis of the protest is known or should have been known. Ensure that you adhere to the COFC’s specific deadlines to preserve your rights.

4. Legal Representation: Given the complexity of the COFC proceedings and the legal expertise required, it is advisable to seek legal representation when filing a protest at the COFC. An attorney experienced in bid protests can help navigate the COFC’s procedures, craft compelling legal arguments, and present your case effectively.

5. Cost Considerations: Filing a protest at the COFC can be more expensive than pursuing a GAO protest. The COFC is a federal court, and the associated legal fees can be higher. It’s essential to evaluate the potential costs and benefits before deciding to pursue a COFC protest after an adverse GAO decision.

Remember that bid protest procedures can be intricate, and the specific circumstances of each case may vary. It is advisable to consult with an attorney familiar with bid protests and experienced in litigating before the COFC to understand the best course of action for your particular situation.

Must Government Contractors Hire an Attorney to File a Bid Protest at the Court of Federal Claims?

While it is not a legal requirement for government contractors to hire an attorney to file a bid protest at the Court of Federal Claims (COFC), it is highly recommended to seek legal representation. Filing a bid protest at the COFC involves complex legal procedures, requirements, and strategic considerations that can significantly impact the outcome of the protest.

Here are some key reasons why government contractors should strongly consider hiring an attorney for COFC bid protests:

1. Expertise in Federal Procurement Laws: Attorneys specializing in government contracts and bid protests possess extensive knowledge and expertise in federal procurement laws, regulations, and case precedents. They are well-versed in the intricacies of the COFC bid protest process, including the specific rules and procedures that must be followed. Their expertise ensures that your protest is grounded in solid legal arguments and increases the likelihood of a successful outcome.

2. Strategic Guidance: Attorneys can provide valuable strategic guidance throughout the bid protest process. They can help you assess the strengths and weaknesses of your case, determine the most effective legal arguments, and develop a well-structured and persuasive protest. Attorneys can also advise on the timing and sequencing of actions, such as whether to pursue a COFC bid protest or a GAO bid protest, and can provide insights on the potential outcomes and risks involved.

3. Document Preparation and Review: Filing a bid protest at the COFC involves the preparation and submission of various legal documents, including the initial protest, responses to agency motions, and supporting evidence. Attorneys can assist in drafting these documents, ensuring that they are properly structured, legally sound, and compelling. They can also review and analyze agency responses and supporting documents, identifying any potential deficiencies or legal issues.

4. Legal Representation in Court: If the bid protest proceeds to litigation or hearings, having an attorney by your side is invaluable. Attorneys can represent you in court, presenting your case before the judge and advocating for your interests. Their courtroom experience and knowledge of courtroom procedures can significantly strengthen your position during the litigation process.

5. Negotiation and Settlement: In some instances, bid protests may result in negotiation or settlement discussions with the government agency involved. Attorneys can skillfully negotiate on your behalf, aiming to achieve a favorable resolution. Their understanding of the legal landscape and experience in negotiation can help secure the best possible outcome for your company.

6. Compliance with Legal Requirements: Bid protests at the COFC must adhere to specific legal requirements and deadlines. Attorneys are well-versed in these requirements and can ensure that all necessary documents are properly filed within the prescribed timelines. Their expertise minimizes the risk of procedural errors that could jeopardize the success of your protest.

Ultimately, hiring an attorney for a bid protest at the COFC can significantly enhance your chances of success. Their legal knowledge, experience, and strategic guidance can provide you with a strong and well-prepared case, increasing the likelihood of obtaining the desired outcome.

How can you get the benefit of both GAO bid protest decisions and the Court of Federal Claims protest decisions ?

If you are unfortunate enough to have GAO issue an adverse decision in your government contract protest, or even if you do not meet the 10-day requirement, the protester can file a new protest at the COFC.  Bid protests at the COFC level are looked at de novo but the judges will also tend to follow the decisions made at the GAO levels.

Contractors should be well aware that filing a protest at COFC is not a direct appeal from the GAO. However, COFC bid protest decisions will be binding on the GAO.  Although you may be getting a second bite at the apple, the COFC looks at the lower argument and tends to follow GAO’s analysis unless there was a clear abuse of discretion or the agency acted unreasonably. The above are all reasons why you need to understand these legal nuances before filing a protest without representation. See also Government Contract Protest Tips Your Competitors Know About

Reasons for Filing a U.S. Court of Federal Claims Bid Protest vs GAO Protests

There are various strategic reasons why you may consider filing a bid protest at the US Court of Federal Claims versus GAO protests.

First, many companies want to feel that an impartial judge actually decides the merits of the case. In high-stakes cases, this is usually the preference. Instead of dealing with an agency lawyer, the DOJ will step in to oversee the government’s actions.

Second, if your GAO protest was deemed untimely, you may still have the opportunity to file a new case at the COFC.

Third, even if the GAO rules against you, you can still file a new bid protest at the US Court of Federal Claims. This court will hear the case as new (de novo). However, the judge may still look at the lower case decision to get some idea of what happened.

Procedurally, the US Court of Federal Claims bid protest is not a direct appeal from the GAO protest. However, a new decision in your favor is binding upon the previous GAO protest decision.

If you decide to file a U.S. Court of Federal Claims bid protest versus GAO protests, seriously consider getting legal advice before doing so. Visit our Bid Protest Site to Find out How an Attorney Can Help You. See also CICA stay at COFC.

For more information or immediate legal representation, call our bid protest Court of Federal Claims. lawyers at 1-866-601-5518. 

Contact a government contracts attorney.