Proposed Revisions to the Tucker Act Would Dramatically
Yesterday, the House Armed Services Committee overwhelmingly passed a final committee mark version of the 2013 National Defense Authorization Act (NDAA). To the surprise of many, this lengthy bill included a provision at Section 817 that would dramatically amend the Tucker Act, 28 U.S.C. § 1491(b), by importing essentially all of the GAO’s rigid timeliness rules with regard to bid protest actions and applying them to protests filed before the U.S. Court of Federal Claims (COFC). Amongst the GAO timeliness rules currently contained in 4 C.F.R. § 21 that would now be added to the Tucker Act and apply to the COFC include:
- The absolute rule that pre-award solicitation challenges must be filed before the submission date for proposals;
- The rule that any post-award protest must be filed within 10 days of when an offeror knows or should have known of the basis for protest, unless subject to a mandatory debriefing, in which case the protest must be filed within 10 days of that debriefing, and;
- In the event that an agency protest has been filed, the rule that a COFC protest must be filed within 10 days of when the offeror knew or should have known of the adverse decision in the agency protest.
I. Statutory Rationale
The stated purpose of this provision is to put an end to the practice of a contractor litigating a protest at GAO and then going to the Court of Federal Claims for a second bite at the apple. According to the rationale supporting the proposed legislation, the status quo creates delay and conflicting precedent which creates chaos for procuring agencies:
Under the existing statutory arrangement, a protester may file a GAO protest, litigate it fully, and if disappointed, commence the entire process anew before the COFC. There, because of different procedural rules and a different standard of review, a protester may obtain the success that eluded it before the GAO. While this process favors few fortunate protesters, it is increasingly the case that COFC decisions are issued that are at odds with longstanding GAO precedent. This plays havoc with the predictability of the procurement system because decisions have precedential value, while the decision any individual COFC does not. Also, this chaotic process greatly lengthens the time required to resolve a protest, which translates into increased costs for the procuring agency.
The validity of this rational is questionable. First, the proposed revision to the Tucker Act do not cover the growing number of circumstances in which an initial awardee who loses at GAO turns around and files a COFC protest challenging the procuring agency’s decision to abide by the GAO recommendation. Recent decisions in Turner Construction and Jacobs Technology are two such cases. In both, the GAO sustained a protest and the initial awardee whose award was disrupted by the sustain attacked the GAO decision in a COFC action. As the COFC protester in cases like these has not filed a prior GAO action, and is challenging a separate procurement action from the initial award, their right to protest would not be impacted by the fact that GAO had heard the case.
Second, the bill’s focus on conflicting precedent seems to barely be furthered at all by amending the COFC’s timeliness rules. While it may be true that GAO and the COFC will have fewer occasions on which to reach opposing conclusions within the same case, nothing in these timeliness rules prevents GAO from reaching a decision on a particular legal issue and the COFC from reaching a substantially different conclusion in a similar case. Agencies will still have to contend with the challenges presented by having two independent forums with concurrent jurisdiction. Forum shopping on an issue-by-issue basis cannot be avoided.
II. Likelihood of Passage
It is difficult to speculate with any precision about the chances of final passage. Having passed the House Armed Services Committee, the bill would theoretically be ripe for a floor vote. According to various Congressional press releases, that vote could take place as soon as next week. One factor which could slow the process is the fact that Title 28 statutes, such as the Tucker Act, are outside the normal purview of the Armed Services Committee. It is possible that the House Judiciary Committee, the Committee that typically deals with Title 28 matters, will declare a point of order and request an opportunity to consider the amendment.
If Section 817 survives a final House vote it must still make its way through the Senate and through the conference process. There will be numerous opportunities for Section 817 to be removed or revised.
III. Potential Impact if Passed
On the other hand, the GAO option was always made more attractive by the fact that the existence of the COFC “Plan B” option. Decisions at the COFC can be appealed to the U.S. Court of Appeals for the Federal Circuit, and then to the Supreme Court, if warranted. There is no right of appeal at GAO, so litigants have sometimes treated the COFC as a de facto appeal entity. By ending this option, litigants – particularly in larger procurements – might be inclined to go to Court in order to preserve an appeal right. Some other litigants will undoubtedly be put off by the fact that GAO will now operate entirely free of check from any reviewing entity. This could increase the unpredictability of GAO as a protest forum.
While the decision may largely boil down to the benefit of the stay versus the benefit of the right of appeal, there are many other factors at play. For example, GAO decisions are advisory opinions and not enforceable against the government. COFC decisions, however, are enforceable court orders. It stands to reason that one of the factors an agency considers when deciding whether or not to follow a GAO recommendation is the fact that the protester could go to the COFC and get an injunction and/or declaratory judgment. Now, it is possible that protesters will not have that option if the COFC deems efforts to enforce GAO rulings as part and parcel with a re-protest. Could agencies become more aggressive in rejecting GAO recommendations?
Procedural rules and policies could also play a part in the forum selection decision. The COFC tends to operate within rigid procedural rules. COFC briefs are usually subject to tight page-limit requirements, while GAO briefs are not. Moreover, the COFC also almost never conducts factual hearings. On the other hand, GAO has no page limits and routinely conducts hearings when deemed necessary. Large, multi-issue, factually complex protests may simply be too cumbersome for the COFC process. In the past, such cases would often be developed at GAO and then re-litigated at the Court with a hearing transcript in the record. If a protester can only have one shot, GAO may be the better option from a flexibility standpoint.
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The ramifications of this proposed amendment to the Tucker Act are widespread. This blog space will continue to provide updates as the legislation progresses.
