Federal Contracting Disputes: Do All Roads Lead to Rome?

• Author: Levinson, Pamela G.
• Position: Part 2 - NVT Technologies, Inc. v. United States

In the last part of this article, we considered the options for a contract claim and began to consider a bid protest. Recall that our hypothetical client Betty can take her bid protest to the Government Accountability Office (GAO) or to the Court of Federal Claims (COFC).

Betty is an interested party for purposes of standing. She bid on the Environmental Protection Agency (EPA) contract, her direct economic interest was affected by the failure of the EPA to award the contract to her company, and she should have had a substantial chance of receiving the EPA contract. Despite the agency's decision to award the contract to Betty's competitor, the interpretation of a contract or solicitation is a question of law, which the COFC reviews de novo. (1)

At the COFC, Betty will also have the benefit of the Federal Rules of Civil Procedure that apply to non-jury civil cases, which have been incorporated into the Rules of the United States Court of Federal Claims (RCFC). (2) These are supplemented by the "Procedure in Procurement Protest Cases Pursuant to 28 U.S.C. [section]1491(b)," found in Appendix Cof the RCFC (Appendix C). (3) Appendix Csets forth the requirements for filing a bid protest at the COFC, including the need to file a 24-hour advance notice of the filing of the bid protest complaint to the Department of Justice (DOJ), Commercial Litigation Branch, Civil Division; the clerk of the COFC; the procuring agency's CO; and the apparently successful bidder/offeror (in cases in which there has been an award and the plaintiff has received notice of the identity of the awardee). (4) Appendix Cprovides specific information that must be included in the pre-filing notice.

Importantly, if the successful bidder is permitted to proceed with the awarded contract, it could make any bid protest at the COFC futile. (5) For that reason, whether the plaintiff intends to seek injunctive relief and whether the plaintiff has discussed injunctive relief with the DOJ are among the items required to be included in the pre-filing notice. (6) Depending on circumstances, the DOJ may agree to voluntarily stay the award and the performance of the contract until the bid protest complaint is litigated. If not, a bid protester like Betty will need to seek injunctive relief.

After the complaint is filed and assigned to a COFC judge, the parties will participate in an initial status conference. (7) At that conference, the judge determines if the plaintiff is seeking injunctive relief, and if so, will conduct a hearing at the earliest possible time. (8) The apparently successful bidder/offeror is permitted to enter a notice of appearance on any hearing on an application for a temporary restraining order or preliminary injunction if it advises the court of its intention to move to intervene pursuant to RCFC 24(a)(2) or has moved to intervene before the hearing. (9)

At the initial status conference, in cases in which the plaintiff seeks injunctive relief, the judge will expect to discuss whether and to what extent, absent such relief, the court's ability to afford effective final relief is likely to be prejudiced, and whether, and to what extent, the parties have discussed whether the government will agree to withhold the award or suspend performance of the contract pending the hearing on the motion for injunctive relief. (10)

Disclosure of Source Selection Information

Typically, as the case begins, the court will issue a protective order either on motion or at the court's discretion. The protective order governs the treatment of protected information in the case, and each party seeking access to the information must file an "Application for Access to Information Under Protective Order" with the court. (11)

Without a bid protest from Betty, the EPA will not volunteer supporting documentation on the reasoning behind the agency's choice to award the contract to Betty's competitor. (12) Government agencies are in fact required to protect contractor bids, proposal information, and source selection information from disclosure to unauthorized persons. (13) Thus, it is only after a bid protest is filed that a bidder has the opportunity to see the documents that might reveal the government's errors in the bidding process. The bid protest process means that at least some of the source selection information can be reviewed, material that, without litigation, Betty will not see. (14)

However, Betty is likely to, at least initially, see much more of the EPA's documentation by filing her bid protest at the COFC than she is at the GAO. (15) A bid protest at the COFC means that the United States will be required to identify and provide the administrative record as promptly as possible, particularly those items that the COFC has designated as "core" documents relevant to the protest case. (16) This list of core documents related to the agency's procurement request can be extensive, including the agency's source selection plan; records of discussions; other interested parties' offers, proposals, or other responses to the solicitation; the agency's competitive range determination and other supporting documentation. (17) The list of recommended core documents, however, is not intended to be exhaustive. (18)

A protester is entitled to an administrative record that contains all relevant information on which the agency relied or allegedly should have relied in making the challenged decision. (19) The COFC has, at times, granted protester's motions to supplement the administrative record, particularly where relevant information would not likely be found in the administrative record, such as where there may be outside evidence of bad faith. (20) Although the scope of the court's review is the administrative record, i.e., what was before the decision-maker when the bid was awarded, the court has permitted extrinsic evidence directed at matters beyond the administrative record that address prejudice, injunctive relief, or remedies, generally. (21)

Under RCFC 52.1, the parties typically file cross-motions for judgment on the administrative record. While hearings at the GAO are fairly rare, the COFC will typically hold a hearing for the parties to present oral argument on their motions for judgment on the administrative record. This is another advantage for Betty in bringing her bid protest to the COFC, where a hearing can be an opportunity to persuade the judge that...