August 20, 2019 Articles

Discovery and Agency Deference to Fact-Findings in Procurement-Related Claims

An exploration of how differences in the scope of discovery before the Court of Federal Claims, together with the growing scrutiny of deference to agency fact-findings, may combine to favor certain bid protests.

By John Belinga and Colton D. Tully-Doyle

The U.S. Court of Federal Claims (COFC) began exercising statutorily conferred authority over federal procurement bid protest claims in 1982 when Congress amended the Tucker Act. See Matthew H. Solomson, Court of Federal Claims, Jurisdiction, Practice, and Procedure 8-8 (2016) (discussing history of bid protests at the COFC); see also Federal Courts Improvement Act of 1982, Pub. L. No. 97-164, 96 Stat. 25 (1982) (amending Tucker Act, 28 U.S.C. § 1491 (1982)). A bid protest generally refers to a “written objection to the conduct of a government agency in acquiring supplies and services for its direct use or benefit.” David H. Carpenter & Mosche Schwartz, Cong. Research Serv., R45080, Government Contract Bid Protests: Analysis of Legal Processes and Recent Developments 1 (2018) (citing 31 U.S.C. §§ 3551(1)(A)–(E)). The Court of Claims, as it was then called, had recognized this cause of action in its jurisprudence as early as the 1950s. See Solomson, supra, at 8-4 (recounting history of bid protests). In Heyer Products Co. v. United States, 135 Ct. Cl. 63 (1956), the Court of Claims conceived the bid protest cause of action as an implied-in-fact contract and recognized the novelty of its decision, perhaps, when it imposed significant hurdles for establishing such claims. Id. at 8-5. Bid protests, however, are no longer a novel feature of the court’s docket. As confirmed by a recent congressionally tasked study, these claims have steadily increased at the COFC as well as at the Government Accountability Office (GAO). See Mark V. Arena et al., RAND Corporation, Assessing Bid Protests of U.S. Department of Defense Procurements, Identifying Issues, Trends, and Drivers, at xiii (2018) [hereinafter RAND Report]. According to the RAND Report, between 2008 and 2016, bid protest activity for both Department of Defense (DoD) and non-DoD agencies about doubled at the GAO (traditionally the most popular bid protest forum), and there was a statistically significant increase in all protests at the COFC over time.Id.

Premium Content For:
  • Litigation Section
Join - Now