By Grace Mahan
There are a number of ways to pursue a protest of a federal contract award. Generally, such protests are pursued in one of three forums: with the procuring agency, the Government Accountability Office, or the Court of Federal Claims. In broad terms, these three bodies differ in the formality of their procedures, their timeliness requirements, and their jurisdictional powers.
For example, the COFC offers the most formal protest procedure. It provides judicial review of agency procurement decisions and offers robust due process protections. The COFC also has the power to issue binding injunctions on agencies. In this regard, the COFC is distinct from the GAO, as the GAO exercises only an advisory role.
Another difference between the GAO and the COFC regards timeliness requirements. GAO protests take place within an accelerated timetable. Accordingly, they are often fast-paced and resolved quickly. Judicial protests in the COFC, on the other hand, often move more slowly and are likely to be more expensive as a result.
The GAO and the COFC also differ in their substantive evaluations of claims. Largely because it handles about 25 times as many protests as the COFC, the GAO has extensive case law to which it adheres. The COFC is not bound by GAO precedent. Additionally, the COFC holds actual hearings on the majority of protests after the close of briefing, while the GAO conducts hearings only in a small minority of cases.
Because of the independence of the GAO and the COFC from one another, a protester is not necessarily bound to the result of its initial forum selection. Instead, protesters may bring the same protest in all three forums sequentially. However, although the decisions of one body are not binding on the others, the GAO and the COFC often defer to the other’s holdings. Accordingly, a would-be-protester should seriously consider in advance the issue of which forum is the appropriate one in which to bring a claim.
Our firm has extensive experience in the federal procurement process and in pursuing and defending bid protests. Please contact any of our lawyers if we may be able to assist you with these or other matters.