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).
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 US Court of Federal Claims 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 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.
The above are all reasons why you need to understand these legal nuances before filing a protest without representation.
Reasons for Filing a US 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 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 US Court of Federal Claims bid protest lawyers at 1-866-601-5518.