The first thing that must settle in your mind is that you simply should not file an appeal simply to get your case heard again. If this is your wish then you should not hire an appellate lawyer simply for this reason. In federal government contracting, you can get this type of review only when you file a Court of Federal Claims bid protest after getting an adverse decision at the GAO level. Here, the Court hears the bid protest as though it were a brand new case file (De Novo). Other than this exception, you should understand the basis for filing an appeal.
What is an appeal?
An appeal is a process by which the higher court reviews the decision of the lower trial court. Depending on the circumstance, you generally have a right to appellate review under United States Constitution and in state constitutions. Appellate courts have the right to overturn a lower court, or government contracting agency if it is reversible or an abuse of discretion. Business entities also have a right to hire an appellate lawyer to challenge the lower decision. See Filing Contract Disputes Act Claims Civilian Board of Contract Appeals.
What Federal Appellate Lawyers Do
When you hire an appellate lawyer to litigate a government contracts case, his or her job should be to first review the record to see if there are any reasonable reasons to take the case to appeal. This takes a lot of time and effort. He or she will be looking for evidentiary violations and abuse of procedural rules and law.
An appellate lawyer will then draft notifications of appeal and begin by writing a detailed brief to convince a court of appeals to overturn your adverse decision
When you lose a case at the trial level, whether it is a civil lawsuit or an administrative law case involving federal government contracts, finding the best lawyer to litigate the appeal can be challenging and time-consuming. Appealing an adverse government contracting officer decision can be tricky and confusing.
Understanding that the contracting officer has vast discretion when administering a contract takes away much of the court’s discretion when hearing a case. In fact, if the opposing attorney can argue that you are appealing an issue that falls under contract administration, the court may quickly dismiss the case.
If you are appealing a federal procurement case, the appellate attorney must also be familiar with the substantive area where the challenge arises. For example, SBA and OHA decisions may originate from 13 CFR 121 or some other section. Small business program decisions may originate from FAR 19 and so on.
- The appellate cannot focus on getting a perfect decision
- The agency only has to show that the decision was reasonable and did not violate procurement laws
When Should You Start Working With an Appellate Lawyer?
In government contracting cases, you should begin working with a government contracts appellate lawyer at the trial level. This could be a size protest at the SBA, a bid protest decision at the GAO or COFC level. Your appeals attorney will want to preserve what appeal rights you have by providing input into the trial itself.
- One dangerous rule that catches small businesses and contractors off guard is the rule where a party cannot raise new issues on appeal.
Learn about the three most dangerous trends in appealing government contracts cases and why learning about them can save you thousands when you hire the wrong type of appellate lawyer.
If you are contemplating filing an appeal, contact our appellate lawyers for a free initial consultation. Call 1-866-601-5518.