Disappointed bidders intent on protesting an allegedly improper contract award could pursue traditionally two avenues of potential relief. They could file a post-award bid protest either: (1) at the Government Accountability Office ("GAO") within 10 days of when they learned of the protest grounds (or, where competitive proposals were involved, within 10 days of the requested and required debriefing), or (2) at the United States Court of Federal Claims ("Court of Federal Claims" or "COFC"), constrained primarily by the Court’s 6-year statute of limitations. While disappointed bidders may retain ultimately the discretion to choose the forum of their choice, protests at the Court of Federal Claims outside of the 10-day period after contract award (or after a requested and required debriefing) are in danger of becoming an artifact of the past. This potential change to the post-award bid protest jurisdiction of the Court of Federal Claims is one that every contractor should be watching closely.
The National Defense Authorization Act for Fiscal Year 2009 (Section 823), which was recently introduced, seeks to amend the Tucker Act, 28 U.S.C. § 1491 (the Court of Federal Claims’ jurisdictional statute), to incorporate essentially the GAO’s 10-day filing requirements. A disappointed bidder would be required, in most circumstances, to file its protest within 10 days of contract award (or of a requested and required debriefing) at both the GAO and the Court of Federal Claims. This change should not come as a complete surprise. The Court of Federal Claims is an Article I tribunal and it has frequently posited, in the face of arguments concerning the timeliness of bid protests, that any change to its bid protest jurisdiction would need to come from Congress. Further, the Court of Federal Claims and the United States Court of Appeals for the Federal Circuit had adopted previously, for all practical purposes, the GAO’s timeliness rules with respect to pre-award protests. This latest legislative amendment would purport to simply balance both sides of the pre-award/post-award equation.
The policy arguments in support of the amendment are understandable. The awardee and the Government would be provided with an increased level of certainty and efficiency in the procurement and protest process because there would be one uniform timeliness standard. The result would be that the awardee and the Government would generally be able to breathe a sigh of relief if a protest was not filed within 10 days of the date of contract award (or of the date of the requested or required debriefing). They also would have confidence that a contractor would be precluded from filing a “second” protest at the Court of Federal Claims after an initial, unsuccessful GAO protest.
There is a legitimate question, however, as to whether the justifications for the amendment are targeted at a self-created "straw man." By contrast with protests filed at the GAO within 5 days of a requested and required debriefing, there is no automatic stay of performance upon filing at the COFC. The protester has the burden of persuading the COFC that a temporary restraining order and/or preliminary injunction should issue pending the court’s ultimate disposition of the case. In addressing the propriety of provisional relief, the COFC will be cognizant of the time period that has elapsed, and the funds expended to date, when analyzing the injunctive relief factors. The court’s traditional approach to these factors will, even in the absence of the proposed legislation, serve as a strong disincentive to the filing of protests well into contract performance. Disappointed bidders are well-aware that, if they are unable to persuade the court to grant provisional relief, whether because of the passage of time or otherwise, many protests will not be worth the cost of further pursuit to judgment. In such cases, "success on the merits" is likely to be an archetypal pyrrhic victory in which the remedy is the recovery of bid preparation costs, most of which are already recoverable by most large contractors as an element of their indirect cost pool.
In light of the foregoing, one must question the need for the proposed legislation. It is doubtful that the agencies can marshal much of an empirical case against the COFC’s current post-award timeliness rules – there just does not seem to be a plethora of programs that have been “hung up” by belatedly filed COFC protests. If “balance” in the protest process is the objective of the legislation, then perhaps the imposition of the GAO rules on COFC litigants should be accompanied by extending the automatic stay provisions of the Competition In Contracting Act ("CICA") to reach COFC protest practice. It is doubtful, however, that this is the “balance” that advocates of the proposed amendments have in mind.
The unavailability of an automatic stay at the COFC in addition provides a pragmatic argument against the merger of the post-award timeliness rules. The requirement that a protester demonstrate its entitlement to provisional relief by satisfying, through clear and convincing evidence, the four factor test prescribed by the COFC, requires a heightened level of preparation and collaboration before the filing of a complaint – one that may not comport necessarily with an abbreviated 10-day filing period. An inflexible rule, such as the one that gives rise to the automatic CICA stay for protests filed at the GAO within 5 days of a debriefing, works adequately because one need not persuade the forum at the outset with respect to the propriety of freezing the procurement in place. When an automatic stay is not available, and the law imposes an affirmative burden on the protester in attempting to preserve the status quo, it may be unduly prejudicial to require the protester to rush to the courthouse within 10-days.
One aspect of protest practice that the proposed legislation would not affect is the ability of disappointed bidders to file protests at a later date, in either forum, based on grounds that were not known or could not have been reasonably known at the time of contract award or at the time of the requested and required debriefing. In such cases, the automatic stay provisions of CICA will not apply and the ability of the COFC to at least entertain a prayer for provisional relief should make it the forum of choice for such cases.
The bill is still in the very early stages of the legislative process, which will presumably vet and weigh the countervailing policy considerations. Section 823, dealing with the Court of Federal Claims’ jurisdiction, will still need to pass the House and the Senate (including surviving any conference committee edits), and will need to be signed by the President. Along the way, there also will inevitably be vigorous discussion within the procurement community as to whether such a change is truly necessary or beneficial to the resolution of bid protests, or whether it is simply another measure to curtail contractor rights. Sadly, the Government’s complaints with respect to the inconvenience of the protest process seem to be directly proportional to the number of protests sustained. That fact, standing alone, may be the best policy argument against the proposed amendment.