As a federal contractor, there are many factors to consider in filing a potential bid protest. In this post, we look at the potential considerations, both pros and cons, for filing a bid protest at the Court of Federal Claims (COFC). Below are some of the main items to think about in considering a bid protest at the COFC, as opposed to a bid protest at the Government Accountability Office (GAO) or an agency level protest. The decision of whether, and where, to file a bid protest is one that should only be taken with care and, preferably, with the advice of counsel.
Here are some of the key things to consider. As we noted in a recent post, the total number of GAO protests has generally gone down over the last several years, while COFC protests have been inching up over the last few years. There are fewer cases in COFC, but the bid protest numbers appear to be growing at COFC. For instance, the number of bid protests filed at COFC in FY 2022 was a mere 123 cases, but increased to 169 cases the next fiscal year. That may explain the trend of fewer cases at GAO.
Complete Administrative Record
COFC protests offer a more robust agency record as compared to GAO and agency level protests. The COFC rules require that the agency produce a number of documents, right out of the gate, including the following:
- Source selection plan;
- The agency’s estimates of the cost of performance;
- Correspondence between the agency and the protester, awardee, or other interested parties relating to the procurement;
- Records of any discussions, meetings, or telephone conferences between the agency and the protester, awardee, or other interested parties relating to the procurement;
- The protester’s, awardee’s, or other interested parties’ offers, proposals, or other responses to the solicitation;
- The agency’s competitive range determination, including supporting documentation;
- The agency’s evaluations of the protester’s, awardee’s, or other interested parties’ offers, proposals, or other responses to the solicitation, including supporting documentation;
- The agency’s source selection decision, including supporting documentation;
The first thing to note is that this is a long list of documents. In fact, in the COFC rulebook, the list goes all the way from (a) to (u), close to the whole alphabet. The second thing is that this list of documents is not subject to debate by the agency. This means the agency must produce the whole list, and the agency cannot object to producing any of the documents. This is a contrast from the GAO protest world, where the agency will often decline to produce documents on the basis of relevance, and even fight through rounds of objections to not include agency evaluation materials.
Finally, the list of documents includes the proposals and evaluation record for all offerors. This is a marked contrast from GAO, where the protester typically only receives its own evaluation record and a small portion of the evaluation record relevant to any specific arguments it makes about awardees.
Timing
GAO’s timing rules are notoriously strict. As we’ve discussed, GAO’s timeliness rules for protests not challenging solicitation terms have strict deadlines. These types of protest, challenging an agency’s evaluation decisions, basically give a company 10 days from either contract award or debriefing in which to file a GAO protest. GAO rules say that a protest shall be filed not later than 10 days after the basis of protest is known or should have been known (whichever is earlier). However, procurements with competitive proposals and required debriefings get an extension so that the initial protest shall not be filed before the debriefing date offered to the protester, but shall be filed not later than 10 days after the date on which the debriefing is held.
At COFC, there is no strict deadline for this type of protest. So, you usually have much more time to file a protest at COFC that does not challenge solicitation terms as compared to GAO.
On the other hand, protests to solicitation terms have a similar rule at both GAO and COFC. Both must be generally filed prior to the proposal deadline.
More Complete Decision
Take a look at some GAO decisions as compared to COFC decisions. One thing you’ll notice is that COFC decisions are simply longer than those at GAO. The judge at COFC will cover all arguments raised in the protest and give each sufficient consideration. However, GAO decisions will often include a footnote that says something along these lines: GAO has considered all other arguments of the protester and determined they have no merit. For instance, a recent GAO decision that we discussed had this to say: “The protester also raises other collateral arguments. While our decision does not specifically address every argument presented by the protester, we have considered them all and find that none provides a basis upon which to sustain the protest.”
A COFC decision is unlikely to use the same tactic. Instead, the COFC judge will almost always review, consider, and rule on each independent aspect of the arguments advanced by the protester, the government, or any intervenor. The COFC also allows for direct appeals to the Court of the Appeals for the Federal Circuit, while the GAO has no direct appeal option.
Potential Stay of Performance/Award
GAO offers an automatic stay of performance, whereas COFC does not. COFC requires a complicated showing in order to get a preliminary injunction. However, more and more, the Department of Justice attorney assigned to the case will often allow for a voluntary stay of performance. This is especially true for larger procurements where there are multiple parties involved. So, protesting at COFC may also result in a stay of performance of the contract, if agreed to by the agency.
Oral Argument
The COFC judge will usually require an oral argument presentation, either in person or remotely. This can be a way for the parties to pare down their argument to its essentials. In these hearings, the judges can be equally harsh on protesters, intervenors, and the government. This can be a crucial way to really focus on the important issues in the case. Oral arguments are quite rare in GAO practice, although they do happen.
Potentially Higher Cost
With the much more complete administrative record, and the likely oral argument, the amount of briefing and argumentation is greater than during a GAO protest. However, it can in many cases be worth it because it allows a fuller picture of the entire evaluation process. It gives protesters a chance to dig into the evaluation of all awardees and consider if the agency made any mistakes. In that crucible, there may very well be errors. Or, in other cases, the protester can at least have the satisfaction of knowing that it put the agency’s evaluation through its paces.
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Next time you are considering a bid protest, give the COFC serious consideration. If you would like to know your options, reach out to a bid protest attorney here at SmallGovCon to answer any questions.
Questions about this post? Email us. Need legal assistance? Give us a call at 785-200-8919.
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