CORRECTION (5/15/12): A prior version of this blog post first posted on May 11, 2012, analyzed the proposed amendment to the Tucker Act discussed herein under the mistaken impression that it had been part of the committee mark version of the 2013 National Defense Authorization Act. We have since learned that the proposed amendment to the Tucker Act was not included in the bill that went to committee vote. The below analysis has been altered to examine the proposed legislation in the proper context. We apologize for the error.
On April 25, 2012, the Department of Defense submitted proposed legislation to the House Armed Services Committee for consideration in the 2013 National Defense Authorization Act (NDAA) 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 DoD proposed to 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. Although DoD proposed that the Tucker Act amendment be included in the committee mark version of the 2013 NDAA, the provision was ultimately not included. We believe this is likely because Title 28 statutes, such as the Tucker Act, are within the purview of the Judiciary Committee, not the Armed Services Committee. It is unclear at this time if and when the Judiciary Committee will consider the proposed legislation and in what form it might find its way into a future bill.
III. Potential Impact if Passed
Should the proposed legislation become law down the road, it would have a sweeping effect on the forum-selection process for prospective protesters. Under the current system, most protesters initiate their efforts at GAO – and tolerate the rigid GAO timeliness rules – in order to benefit from the automatic stay of performance guaranteed in the Competition in Contracting Act (CICA), 31 U.S.C. § 3553. While the proposed legislation would see the COFC adopt GAO’s timeliness rules, it says nothing about adopting an equivalent to the mandatory stay guaranteed to GAO protesters in the Competition in Contracting Act (CICA). This could suggest a reduction in COFC protests with little impact on the GAO docket.
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 the proposed legislation eliminating 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. If the proposed legislation becomes law, 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 decisions under a revised Tucker Act. 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.