Under the requirements to intervene in a bid protest or some other case at the Court of Federal Claims. Avoid wasting money on procedure disputes and focus on the merits of the case.
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
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 United States Court of Federal Claims motion for 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 a motion 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.
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.
Why File A Motion to Intervene?
Although you are the successful winner of a federal contract, it is clear that bid protests challenge the agency directly. The agency’s interest is not necessarily yours.
Given the timeliness requirements for a motion to intervene 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.
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.
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
The Court of Federal Claims will frown if you wait until the last hour to file a motion to intervene. 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 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.