Historically, bid protests were filed in the federal district courts. Under the Administrative Procedures Act, 5 U.S.C. § 702, federal district courts reviewed challenges to agency procurement decisions.
Known as the “Scanwell Doctrine,” this federal district court authority was named after the 1970 D.C. Circuit Court decision in Scanwell Lab., Inc. v. Schaffer, 424 F.2d 859 (D.C. Cir. 1970). If you are filing a bid protest, it is important to hire a knowledgeable attorney to guide you through this sometimes complex process.
In 1996, the Administrative Dispute Resolution Act (ADRA), 28 U.S.C. § 1491(b)(1), specifically granted federal district courts jurisdiction to hear challenges to pre- and post-award bid protests. The ADRA, however, included a sunset provision divesting the federal district courts of that jurisdiction by 2001.
The bid protest system as we know it today establishes three forums that have jurisdiction to review bid protests:
- Agencies, established by Executive Order No. 12,979, 60 Fed. Reg. 55,171 (1995)
- The U.S. Government Accountability Office (GAO), established by the Competition in Contracting Act of 1984, 31 U.S.C. §§ 3551-3556
- The U.S. Court of Federal Claims (COFC), established by the Tucker Act, 28 U.S.C. § 1491 (as amended by ADRA)
Each of these three forums serves a different purpose and comes with advantages and disadvantages when compared to the others. Despite these differences among the forums, there are some general similarities that are helpful to consider and that provide a good foundation about what you should think about before filing. These include: (1) the contents of the protest; (2) deadlines within which to file; and (3) remedies that can be granted.
The content of a properly filed bid protest at each of the three forums is generally the same:
- The name, address, and other contact information for the protester
- The solicitation or contract number
- The agency issuing the procurement
- A detailed statement of the legal and factual grounds for the protest, including how the protester is prejudiced by the agency’s action
- Copies of relevant documents supporting the protest
- Request for a ruling and a statement of the relief requested
- Protester’s interested party status
The timing of when a protest must be filed varies from forum to forum, but generally speaking, requires a fairly quick turnaround once a potential protester learns of the award or proposed award or if the potential offeror has issues with the solicitation. Filing a bid protest can quickly become overwhelming, which is why it is important to have a knowledgeable attorney on your side who can guide you through the process. Dunlap Bennett & Ludwig’s team of GAO bid protest attorneys are highly experienced, and are ready to advocate on your behalf.
Each of these three forums has advantages and disadvantages. For example, if you want a relatively quick decision, an agency-level protest might be right for you. Agencies are required to use their “best efforts” to issue a decision in thirty-five (35), whereas the GAO is statutorily mandated to issue a decision within one hundred (100) days, and the COFC has no set deadline (although the court does generally decide bid protests in an expedited manner).
On the other hand, if a stay of the contract award or performance is important to you, the GAO rules require an automatic stay of contract award or performance during the pendency of the protest when the protest has been timely filed. This automatic stay provision essentially means that the contract cannot be awarded if it has not been already, or if it has, the performance must stop during the pendency of the protest. In contrast, the COFC does not require a mandatory stay, and while it is possible to request a stay of the award or performance of the contract at the COFC, this can prove to increase costs significantly.
If, however, there is a concern that the relatively strict deadlines within which to file a protest at the agency-level or GAO have passed, the COFC has less restrictive post-award filing deadlines, and a protest filed at the COFC could still be considered timely even if it would not be at the agency-level or before GAO.