How US Court of Appeals for the Federal Circuit Decides Past Performance and Best Value Bid Protest Cases

Sometimes when the US Court of Federal Claims rules adversely on a motion for judgment upon the administrative record in a bid protest, you can appeal the decision to the US Court of Appeals for the Federal Circuit.

There are many cases where the Federal Circuit Court of Appeals has reversed the Court of Claims decision about agency best value award decisions and past performance evaluations. However, this level of appeal requires profound legal analysis.

Standard For Review in Bid Protest Appeal

When you appeal a bid protest decision, the US Court of Appeals for the Federal Circuit reviews the case de novo.  This means that it considers the legal issues on a very different standard. Appellants have to show that the Judge at the Court of Federal Claims committed some level of error. In a bid protest appeal, the appeals court looks to see whether the agency’s action was arbitrary and capricious, abuse of discretion, or somehow not in accordance with law and, if so, whether the error is prejudicial to the protestor. See 28 USC 1491(b)(4)

• The US Court of Appeals for the Federal Circuit adopts a very high differential approach to the arbitrary and capricious standard in a bid protest.
• The Court also realizes that contracting offers have a broad range of discretion during the procurement process.
• The burden of proof is higher when challenging the contracting officer’s decision in negotiated / best value procurement.

Circuit Court of Appeals of Best Value Award Source Selection Process Decisions

A common mistake made by contractor attorneys when appealing best value contracting and procurement source selection process is to substitute its decision for the government. This approach will almost always get the appeal denied. You have to show more of why the government contracting agency either did not follow the solicitation criteria. Another approach is to focus on what guidance procurement law gives for the best value award source selections and how the agency violated government contracting regulations.

Circuit Court Appeal of Past Performance Rating and Evaluations

When appealing the Court of Federal Claim’s bid protest decision to the Federal Circuit Court of Appeals, simply stating that the agency’s past performance evaluation was inconsistent with the evidence in the record, without pointing hard evidence, almost always ends up with the Court’s adverse ruling. Government contractors must keep in mind that although past performance ratings weigh heavily in best value procurement award when it comes to the best value tradeoff process, the contracting agency can make certain concessions if it believes that a more negative past performance rating when compared to price factors presents the best value to the government.

• Appellants must focus on showing a material error in the evaluation. If the legal argument on appeal leans towards showing what makes a better business judgment, the case will get a losing decision.
• Usually, when there are negative comments on a contractor’s past performance ratings, the agency may give an opportunity to respond to the negative comments.

 When evaluating your past performance proposal, government contracting agencies can give different consideration and weight, or no weight at all, to different contracts your provide in your proposal response.  See PlanetSpace, Inc. v. United States, 92 Fed. Cl. 520, 539 (2010).

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

If you are considering filing an appeal to the US Court of Appeals for the Federal Circuit from a bid protest at the US Court of Federal Claims, call our bid protest lawyers at 1-866-601-5518.