A New Forum for Challenging Bid Protests

Before the law took effect, the COFC could hear only pre-award bid protests where only injunctive relief was available. The court can now entertain post-award protests and award monetary damages, as well as injunctive relief.

Allowing post-award protest relief at the COFC provides contractors with several advantages.

First, the COFC is a specialized court with the majority of its cases involving government contract adjudication. COFC judges are well-versed in government contracts, as opposed to district court judges, who hear all types of civil and criminal matters.

Second, the COFC offers more accessible and efficient resources than the district courts and GAO, and the COFC docket is not as hectic as the district court's, resulting in a more thorough and faster review.

Now for the disadvantages. The COFC lacks a coherent set of procedural rules governing post-award protests, particularly with regard to timeliness and discovery. A group of government attorneys led by the Office of Federal Procurement Policy advocated in a recently issued white paper that the court should adopt the GAO's timeliness rules that require post-award protests be filed within 10 calendar days from the date the offeror has a basis to know that protest grounds exist.

The white paper further calls for the COFC to generally defer to agency award decisions and require a clear demonstration of prejudicial error in such decisions, essentially the same standard applied by the GAO.

Regarding discovery, there are discovery rights for protesters at the COFC, including the taking of depositions, if the court allows.

In contrast, limited document production is permitted at the GAO, but depositions are not taken. The government lawyers who authored the white paper want to limit all discovery in COFC protest proceedings to information already in the administrative record. In other words, like the GAO, COFC protest decisions would be based on information provided by the agency and bidders during the procurement process.

But the white paper goes on to propose that contracting officers be permitted to provide additional information beyond existing procurement-related documents that may explain their award decisions. Essentially, this would allow a contracting officer to make post-award justifications but not allow the protester any discovery to counter such after-the-fact arguments.

Another possible disadvantage in a COFC protest may be the legal costs. Court proceedings are usually more expensive for the protester than the administrative-type challenges before the GAO.

Much of this has to do with the GAO's limited discovery process and the fact that hearings are more widely used in both the district court and COFC proceedings. But, while nobody likes to see inordinate amounts paid to lawyers, the likelihood of high legal fees should be balanced against the complexity of the protest, the business stakes involved and the need to take advantage of the protest forum offering the best chances of success.

So far, business has been slow at the COFC's protest shop, with only seven post-award protests filed this year.

Other than deciding two appeals of GAO bid protest decisions, both of which were in favor of the government, the COFC has not yet published any of its own post-award protest decisions. The next four months should, however, provide more insight into the future of post-award protests at the COFC, primarily because there is usually an increase in protest activity during the summer months, allowing more opportunities to test the COFC's protest process.

In the meantime, IT contractors may want to consider this forum when challenging an agency's award decision. Compared to the GAO and district courts, the COFC may be a more favorable forum, particularly with regard to complex IT procurements that require a more specialized knowledge of the procurement process, as well as familiarity with the nuances of federal IT purchases.

James C. Fontana is an attorney with Reed Smith Shaw & McClay and a member of the firm's Government Contracts and Technology Law groups. He can be reached at jcfontan@rssm.com. Scott Chaplin, an associate with the firm and a former COFC judicial clerk, assisted with this article.