ABA Section of Public Contract Law Bid Protest Committee
[Editor's Note: These guidelines were originally issued by the U.S. Court of Federal Claims. They are reproduced here as a public service of the ABA Public Contract Law Section.]
These Guidelines are intended to familiarize practitioners with the procedures employed by the United States Court of Federal Claims for handling suits to enjoin the award or performance of a government contract. Effective December 31, 1996, the court will have jurisdiction to consider both pre- and post-award bid protests, per amendments to 28 U.S.C. §1491(b). In addition, the court will have jurisdiction over suits brought not only by disappointed bidders, but also by any "interested party." This term is defined in 31 U.S.C. § 3551(2). The standard of review is the arbitrary or capricious/not in accordance with law standard codified in 5 U.S.C. § 706. The following questions and answers are intended to address some of the more frequent questions that have arisen in connection with the court's bid protest jurisdiction.
1.What law does the court apply to bid protest cases?
When the court was created in 1982, Congress specified that the court should look to the bid protest law developed by the United States District Court for the District of Columbia, the so-called Scanwell doctrine (Scanwell Lab., Inc. v. Shaffer, 424 F.2d 859 (D.C. Cir. 1970)). The Federal Circuit, which hears appeals from the Court of Federal Claims, and the Court of Federal Claims have applied the law as reflected in Scanwell and its progeny.
2.Must an out-of-town attorney travel to Washington, D.C., in order to file a bid protest case?
No, you can send your pleadings by express mail. However, you must be a member of the bar of the court in order to file a lawsuit. Telephone the Clerk of the Court, David A. Lampen, at 202-219-9657, if you have any questions about how to apply
3.What rules should an attorney consult before filing for injunctive relief.
The Court of Federal Claims follows the Federal Rules of Civil Procedure to the extent possible. Thus, the numbers of the RCFC correspond to their counterparts in the Fed. R. Civ. P. The rules with decimals, e.g., Rule 65.1, represent modifications to the Federal Rules. The most important rules are Rules 65 and 65.1 setting forth the specific procedures for obtaining temporary and permanent injunctive relief and Rule 56 governing summary judgment. Rules 82, 83, and 83.1 specify the form and content of briefs and the number of copies required. Rule 65(f)(2) requires that the counsel notify the apparently successful bidder by telephone, serve it with the application, and so certify. The protestor must serve 2 copies of all pleadings by hand delivery on the Department of Justice. Also, be aware that RCFC 65(c) imposes a security requirement if the Government does not agree to defer award or performance. N.B.: The court is in the process of revising its rules, and the address for the Department of Justice is no longer current. Notify the Department of Justice, Commercial Litigation Branch, Civil Division, 1100 L Street, N.W., Rm. 12124, Washington, D.C. 20530. Although not required, you may want to telephone the Department of Justice at 202-514-7300 and state that you are intending to file for injunctive relief, or have filed, in order to expedite assignment of an attorney. You should not hesitate to telephone the Clerk of the Court, David A. Lampen, at 202-219-9657, about the form and content of your pleadings.
4.What pleadings must be filed?
RCFC 65 and 65.1 specify a complaint, an application for a temporary restraining order, and a motion for a preliminary injunction. The court is revising its rules, and it is anticipated that the requirement for a motion for preliminary injunction may be modified or eliminated. However, in the interim this pleading is required. The court's experience with injunctions in bid protest cases has taught that almost all matters have been resolved in 2 steps: The hearing on the TRO (which frequently becomes a status conference when the Government agrees to defer award or performance) and a subsequent argument or evidentiary proceeding on permanent injunctive relief This is because the Department of Justice always has notice of the hearing for the temporary restraining order.
5.How does a party arrange for filing papers under seal?
If a party wants to file a pleading under seal, the attorney should submit the document with a separate motion for leave to file the pleading under seal. The motion should include information on who, if anyone, may have access to any sealed material. The Clerk's Office informally will seal the document and not allow public inspection of it until the judge rules on the motion to seal. If the judge grants the motion, the Clerk's Office will seal the document and maintain it in a secure location, separate from public filings in the case.
If a judge grants a motion to seal an entire case file or for leave to file future pleadings under seal, the attorney should utilize the following procedure: RCFC 83 requires an original and two copies of a pleading. The original should be placed in one manila envelope and the two copies in a separate manila envelope. Photocopies of the front and signature pages and the certificate of service should be attached to the front of each envelope. If either page contains information that is protected, attach a redacted version. Pursuant to RCFC 77.3(d), the Clerk's Office will dispose of any documents filed under seal after the decision in the case becomes final.
6.Is there a requirement to post security?
RCFC 65(c) imposes a requirement to post a bond in order to obtain a TRO if the Government does not agree to withhold award and/or performance. The Clerk's Office maintains a list of approved bonding companies. Note that Rule 65.1 addresses procedural requirements for security. If the bond is obtained from a bonding company, the party need not obtain the bond form from Clerk.
7.Must an out-of-town attorney appear at the hearing on an application for a temporary restraining order?
No, the court has teleconferencing capability. Typically, the judge to whom the case is assigned will instruct staff to telephone counsel to schedule a date and time for the hearing either later in the day of filing or the following business day. At that time you can advise the court if you will be participating by telephone conference call. The judge might require the Government to appear in person, in any event.
8.How do I know if I need to appear with my affiants/declarants?
Once you learn the name of the Department of Justice attorney assigned to the case, ask opposing counsel to notify you as soon as possible if the Government is willing to defer award of the contract or performance under an awarded contract until the matter is resolved. In the past the Government typically has been willing to defer action for a short period of time, so that briefs can be filed, the case argued, and the decision issued without the need for a formal restraining order. However, if defense counsel cannot make that commitment, you should be prepared to proceed with a hearing on an application for a temporary restraining order. If you consider that you will need your affiants/declarants, you must be prepared to appear with them. Due to the press of time, the judge may not be able to travel for an initial evidentiary hearing. It should be noted that in the past evidentiary initial hearings have been the rare exception; the norm has been argument by counsel.
9.What happens next?
If the Government does not agree to defer action until the matter is resolved, the judge will enter an order on the TRO. Irrespective of a grant or denial of the TRO, the judge will schedule further proceedings. The judge will inquire if the parties have all the information that they need in order to proceed. Be prepared to inform the judge of what information you consider necessary in order to proceed. Informal exchange of documents is the usual procedure. If you determine that you need any formal discovery, including depositions, be prepared to explain why. Typically, these cases proceed on documents that were made available to the contracting officer or issued by him or her. The parties generally agree to proceed by cross-motions for summary judgment. The judge will set a briefing schedule that typically will provide for short turnaround times and service by express mail or hand delivery. The judge also will schedule argument or, in the infrequent case where evidence must be taken, a later date for the trial. Because injunctive relief is extraordinary and urgent, you can expect that the entire proceeding will be handled expeditiously.
10.Will the judge always enter a decision after the argument or trial on the merits?
If the Government has agreed to defer award or performance to a date certain, the decision on injunctive relief is due on that date. However, the judge may enter a summary order and reserve filing of an opinion at a later date. The parties can appeal such an order upon entry without awaiting the opinion, although the opinion will be part of the trial court's record. If the court has denied a TRO, there is no deadline outstanding, but the parties can expect the same time frame for all proceedings because the consequences of a grant of injunctive relief by the judge or the appellate court can be very disruptive to the procurement process.
11.Must out-of-town counsel and parties travel to Washington, D.C., for argument or trial?
No. By statute, 28 U.S.C. § § 173, 2503(c), the Court of Federal Claims holds proceedings in locales that suit the convenience of witnesses. Typically, local federal district courtrooms are made available. The judge can and will travel for purposes of argument, in appropriate cases, and the question of the most suitable and convenient place for court proceedings after the TRO hearing should be discussed at the hearing on the application for the TRO.