US Court of Federal Claims Rules & Bid Protest Process – What is a Motion to Intervene ?

Motion to Intervene in Federal Court of Claims Bid Protest - Intervention meaningUnder the requirements of the government contract protest process at the US Court of Federal Claims. Avoid wasting money on procedural disputes and focus on the merits of the case. In rare circumstances, the court may deny your motion to intervene in a bid protest case if it is too late. Filing a Bid Protest Court of Federal Claims motion to intervene in federal court can be a tricky process. Bid protest lawyers sometimes run afoul of the court’s analysis for motions to intervene.

A government contractor can make the costly mistake of not filing a timely intervention motion. Although there is no set deadline, companies have often run into problems with late motions or even not intervening in the GAO case.

What is a Motion to Intervene?

What is a motion to intervene? Rule 24 meaning: A motion to intervene under  Fed r civ p 24 is a legal request for permission to become involved in a pending lawsuit. In the case of bid protests, this involves asking the United States Court of Federal Claims for permission to join a case that is already underway. By filing such a motion, the company hopes to be allowed to participate in proceedings which were previously closed off from them.

The motion to intervene must generally be filed within the time frame set forth by the Court in its orders. In addition, it must include a statement of interest and a brief that sets out the basis for intervention. The potential intervener must show why their interests are at stake and how those interests would be affected without their participation. 

Motion to Intervene Meaning in Federal Court? Fed R Civ P 24

Generally,  in the government contract protest process, a civil lawsuit involves a plaintiff (who brings the suit), and the defendant(the person or company who the lawsuit is logged against. Sometimes, a person who is not an initial party to the lawsuit wants to join the lawsuit or is an interested party that the court’s decision may impact or bind. For example, in bid protest litigation, an interested party wishing to intervene must file a Motion to Intervene at the Court of Federal Claims under Rule 24a. A person can intervene at the various boards of contract appeals by filing a notice of intervention.

A motion to intervene in a case in Federal Court is addressed by Federal Rule 24a of the Federal Rules of Civil Procedure.  Rule 24 a Meaning: It provides in part that:

(a) Intervention of Right.  Upon timely application anyone shall be permitted to intervene in an action: (1) when a statute of the United States confers an unconditional right to intervene; or (2) when the application claims an interest relating to the property or transaction which is the subject of the action and the applicant is so situated that the disposition of the action may as a practical matter impair or impede the applicant’s ability to protect that interest, unless the applicant’s interest is adequately represented by existing parties.

Under the federal rule of civil procedure 24, which the Court of Federal Claims tends to follow, Intervention in a bid protest action means entering the case either as the awardee or some other interested party. A motion to intervene in a COFC  bid protest is governed by the US  Court of Federal Claims Rules (RCFC), Federal Rule 24(a), which states in relevant part: “On timely motion, the court must permit anyone to intervene who . . . claims an interest relating to the property or transaction that is the subject of the action, and is so situated that disposing of the action may as a practical matter impair or impede the movant’s ability to protect its interest unless existing parties adequately represent that interest.”

Make Sure Grounds for Appeal to the Court of Federal Claims Passes Legal Scrutiny

Before intervening in an existing appeal at the Court of Federal Claims make sure that the grounds for the initial appeal are solid because the burden of proof when challenging an agency’s award decision lies with the Submitter. To pursue aN successfully, the protester must provide sufficient evidence to establish that: (1) The agency failed to act in accordance with the applicable laws and regulations or deviated from its own procurement procedures; (2) The action taken by the agency was unreasonable; or (3) The protester will suffer immediate and irreparable harm if the injunction is not granted.
Additionally, the movant in a bid protest must demonstrate that the balance of equities tips in its favor and no other party can adequately protect its interest. Any failure to meet these requirements may impair or impede the movant’s ability to protect its interests. 

Federal Rule 24a – Intervention

(a) Intervention of Right. On timely motion, the court must permit anyone to intervene who:

(1) is given an unconditional right to intervene by a federal statute; or

(2) claims an interest relating to the property or transaction that is the subject of the action, and is so situated that disposing of the action may as a practical matter impair or impede the movant’s ability to protect its interest, unless existing parties adequately represent that interest.

(b) Permissive Intervention.

(1) In General. On timely motion, the court may permit anyone to intervene who:

(A) is given a conditional right to intervene by a federal statute; or

(B) has a claim or defense that shares with the main action a common question of law or fact.

(2) By a Government Officer or Agency. On timely motion, the court may permit a federal or state governmental officer or agency to intervene if a party’s claim or defense is based on:

(A) a statute or executive order administered by the officer or agency; or

(B) any regulation, order, requirement, or agreement issued or made under the statute or executive order.

(3) Delay or Prejudice. In exercising its discretion, the court must consider whether the intervention will unduly delay or prejudice the adjudication of the original parties’ rights.

(c) Notice and Pleading Required. A motion to intervene must be served on the parties as provided in Rule 5. The motion must state the grounds for intervention and be accompanied by a pleading that sets out the claim or defense for which intervention is sought.

Court of Federal Claims Motion to Intervene in a Bid Protest

On the other hand, you can file a Court of Federal Claims intervention in a bid protest for other reasons. For example, permissive intervention is governed by RCFC Rule 24. (b), which states in part: “On timely motion, the court may permit anyone to intervene who . . . has a claim or defense that shares with the main action a common question of law or fact.”

When filing your motion for leave to intervene, you should tell the court’s judges whether you are intervening of right or permissively. Still, regardless of your reason, the motion must be timely. As you file the motion, you must also keep in mind that you must also meet the interested party and standing requirements commonly sought in a government contract bid protest. When a lawyer learns that the protestor is going to file a bid protest at the COFC, he or she should first make sure that the protestor meets the intervention definition. This way, a decision of when to file a timely motion to intervene can be made and there should be less worry about a motion to dismiss.   In other words, the protestor must meet the motion to intervene in federal court rules. S

Do You Have Intervenor Status? Why Intervene?

Although you are the successful winner of a federal contract, it is clear that bid protests challenge the agency’s action. directly. The agency’s interest is not necessarily yours. Therefore, since you have substantial risks of losing the contract, you may want to seriously consider making sure that you have intervenor status and having a bid protest attorney on your team who also understands the process.

Given the timeliness requirements for a motion in federal court, you cannot sit and wait until you see something going wrong in the litigation stages, and then attempt to file. Under the US Court of Federal Claims rules, you may run the risk that your motion is untimely. See Court of Appeals for the Federal Circuit Bid Protest Appeal – Patent Ambiguity-what-does-ambiguity-mean.

Bid Protest US Court of Federal Claims Timeliness 

One of the advantages of filing a bid protest at the COFC is that there are no statutory bid protest deadlines. This is a clear distinction from the typical 10-day requirement at GAO or agency. However, consistent with GAO bid protest timeliness requirements, if you, as a protestor, file a pre-award protest challenging the solicitation terms, the COFC’s rules require that you file the protest before the closing date for receipt of proposals. See Blue & Gold Fleet, L.P. v. U.S., 492 F.3d 1308, 1315 (Fed. Cir. 2007) .

Although there is no clear protest deadline at the US Court of Federal Claims for post-award bid protests, the court does have a hard and fast rule for filing late bid protests. The rule suggests that if you wait too long, you will run the risk that the protest will be rejected under the doctrine of laches.  The  government’s protest attorney will argue that the protestor has waited too long and has “slept on their rights.” See Blue & Gold Fleet, 492 F.3d at 1315.

How to File a Motion to Intervene

At the US Court of Federal Claims, an interested party may be permitted to participate as a party if the final decision of the Court could directly and adversely affect it or the individual or entity may contribute materially to the disposition of the proceedings; The individual’s or the entity’s interest is not adequately represented by existing parties; an intervention would not unfairly prejudice existing parties or delay resolution of the proceeding. These are but some of the things you have to do when you want to file a motion to intervene.

In the government contract protest process, the successful awardee is usually the intervenor. Yet, in other situations, any interested party, who has a stake in the outcome of the case can intervene. When you file a motion be sure to include the above requirements.

COFC Bid Protest Intervention

Under the legal definition, a motion to intervene in federal court means that it must be timely when a government contractor seeks to intervene as of right or permissively in a bid protest case at the US Federal Court of Claims. The courts have made this clear. See Chippewa Cree Tribe of the Rocky Boy’s Reservation v. United States (Chippewa Cree), 85 Fed. Cl. 646, 658 (2009).

The definition of timeliness “is to be determined by the court in the exercise of its sound discretion” and it is “to be determined from all the circumstances.” NAACP v. New York, 413 U.S. 345, 366 (1973). The Court’s decision to assess intervention timeliness is essentially discretionary. See Protesting SBA Certificate of Competency COC Decisions 13 CFR 125 and FAR 19.6.

In evaluating timeliness, federal courts typically consider three factors under the US Court of Federal Claims Rules:

(1) The length of time during which the applicants actually knew or reasonably should have known of their rights;

(2) Whether the prejudice to the rights of existing parties by allowing intervention outweighs the prejudice to the applicants by denying intervention; and

(3) The existence of unusual circumstances militating either for or against a determination that the application is timely.

If you wait over a month to file a COFC motion for intervention in a bid protest, you will be taking a huge chance, unless of course, you easily meet the above levels.

Timeliness for a motion to intervene in federal court in a bid protest case must be considered in the context of the proceedings. In a bid protest, proceedings move at an expedited pace and are often resolved within two to three months. 

At best, when you are considering a late intervention filing you should at least allege unusual circumstances for a determination that the intervention is timely. See Chippewa Cree, 85 Fed. Cl. at 658.

  • The Court realizes that there are special circumstances that could allow you to file an intervention motion. As a government contractor, you should be aware that bid protests are resolved on as expedited a schedule as may be practical.

No Sideline Litigation in US Court of Federal Claims Bid Protests

As an intervenor defendant in a bid protest case, the Court of Federal Claims will frown if you wait until the last hour to file a motion. You simply cannot sit on your rights to become an intervenor. See also how to intervene under 4 CFR 21.

If you are seeking help with a motion to intervene in government contract bid protest cases under the US Court of Federal Claims Rules, Intervention Meaning, and jurisdiction from experienced bid protest intervention lawyers, call 1-866-601-5518 for a free consultation.

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