Under the requirements to intervene in a bid protest or some other case at the United States 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 United States Court of Federal Claims motion to intervene in a bid protest 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 for late motions or even not intervening in the GAO case.
US Court of Federal Claims Rules For Motion to Intervene in a Bid Protest
What is a Motion to Intervene? Intervention Meaning
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 is governed by the US Court of Federal Claims Rules (RCFC), 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.”
On the other hand, you can file a Court of Federal Claims motion to intervene 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. See also, Contract Disputes Act of 1978 — General Contractor and Subcontractor Pass-Through Rights & Contract Claims.
Do 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 legal counsel on your team that 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.
Timeliness for Motion to Intervene Federal Court Bid Protests
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 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 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.