BID PROTESTS

Characteristics of

Cases Filed in Federal

Courts

United States General Accounting Office

GAO Report to Congressional Committees

April 2000

GAO/GGD/OGC-00-72

United States General Accounting Office General Government Division

Washington, D.C. 20548

Page 1 GAO/GGD/OGC-00-72 Bid Protests

B-282743

April 17, 2000

The Honorable Fred Thompson

Chairman

The Honorable Joseph Lieberman

Ranking Minority Member

Committee on Governmental Affairs

United States Senate

The Honorable John Warner

Chairman

The Honorable Carl Levin

Ranking Minority Member

Committee on Armed Services

United States Senate

The Honorable Dan Burton

Chairman

The Honorable Henry Waxman

Ranking Minority Member

Committee on Government Reform

House of Representatives

The Honorable Floyd Spence

Chairman

The Honorable Ike Skelton

Ranking Minority Member

Committee on Armed Services

House of Representatives

Currently, an eligible person or business may file a protest challenging a

federal contract award or the procedure by which the offers were

solicited. Protests may be filed before or after the contract is awarded.

Under the Administrative Dispute Resolution Act (ADRA) of 1996,1

 the 94

U.S. district courts and the United States Court of Federal Claims (COFC)2

have the same jurisdiction to decide bid protest cases. In addition, district

 

1

 P. L. 104-320, see 28 U.S.C. 1491(b).

2

 The 94 district courts are located in the 50 states; the District of Columbia; the Commonwealth of

Puerto Rico; and the U.S. territories of the Virgin Islands, Guam, and the Northern Mariana Islands.

COFC is located in Washington, D.C.
B-282743

Page 2 GAO/GGD/OGC-00-72 Bid Protests

courts and COFC may grant any relief that the court considers appropriate,

except that monetary relief is limited to bid preparation and proposal

costs. Under ADRA, district court jurisdiction for bid protest cases is

scheduled to expire on January 1, 2001. The expiration of district court

jurisdiction is supported by some groups and opposed by others.

In response to ADRA, and as agreed with the committees of jurisdiction,

this report reviews the cases, particularly small business cases, that have

been filed in district courts and COFC since ADRA took effect on

December 31, 1996. Our objectives were to (1) identify the number of bid

protest cases filed in the U.S. district courts and COFC between January 1,

1997, and April 30, 1999, that were filed by small businesses, the type of

agencies involved (civilian or defense), and the amount of the procurement

at issue; (2) identify the perceived advantages and disadvantages,

particularly for small businesses, of filing bid protest cases in each judicial

forum, the district courts and COFC; and (3) obtain available data on the

characteristics of district court and COFC bid protest cases, particularly

those filed by small businesses, that could be used to assess these

perceived advantages and disadvantages.

As agreed with the committees of jurisdiction, we focused our analysis on

the characteristics of the bid protest cases filed since concurrent

jurisdiction became effective, including the characteristics that may be

relevant to assessing the arguments in favor of and opposition to retaining

district court jurisdiction. However, our analysis did not address the policy

arguments in favor of or opposition to retaining district court

jurisdiction—for example, whether it was desirable to retain the district

courts as an Article III judicial forum (one in which judges have life

tenure) for bid protest cases or to have a more uniform body of

procurement case law.3

Between January 1, 1997, and April 30, 1999, at least 66 bid protest cases

were filed in U.S. district courts.4

 During the period January 1, 1997,

 

3

 Although COFC is an Article I court—one in which judges are appointed for a specific number of

years—appeals of COFC decisions are heard by the U.S. Court of Appeals for the Federal Circuit,

which is an Article III court—one in which judges are appointed for life. Article I and Article III refer to

the articles of the U.S. Constitution under which the courts were created.

4

 Although we began with a list of about 94 potential bid protest cases, we did not receive the case files

for 10 cases. A review of the remaining 84 case files revealed that 19 of these cases were duplicates or

did not involve bid protests. Among the 10 cases we did not receive was a sealed case. However, we

were able to review this case file at the district court, and we counted it among the 66 bid protest cases

we reviewed.

Results in Brief
B-282743

Page 3 GAO/GGD/OGC-00-72 Bid Protests

through August 1, 1999, 118 bid protest cases were filed in COFC.5 On the

basis of available data, using an inclusive definition of small business,6

 we

found that about half of the cases in both district courts (33 of 66) and

COFC (61 of 118) were filed by small businesses. Defense procurements

were the subject of the majority of small business protests in both district

courts (19 of 33) and COFC (40 of 61). For those cases for which the value

of the procurement was available, the majority of the small business

procurements in district courts (23 of 27) and COFC (27 of 49) were for

$10 million or less.

Those who support the retention of district court jurisdiction for bid

protest cases assert that (1) requiring small businesses to file all their

protests in COFC, rather than having the option of filing in their local

district courts, could make it more expensive for all businesses,

particularly small businesses, to file bid protest cases; (2) district courts

provide an Article III forum (one in which judges have life tenure) for bid

protest issues; (3) COFC judges may be unable to travel on short notice to

conduct hearings in bid protest cases; and (4) jurisdictional problems may

arise from the sunsetting of district court jurisdiction. Those who support

COFC as the sole judicial forum for bid protest cases assert that (1)

consolidating jurisdiction in COFC will provide the opportunity to develop

more uniform procurement case law than is possible among 94 district

courts; (2) a single judicial forum for bid protests will eliminate forum

shopping (litigants seeking the most favorable judicial forum in which to

file their cases); (3) COFC has broad authority to hear issues related to bid

protests; (4) COFC judges can travel as necessary. The case data available

provide a limited basis for assessing the perceived advantages and

disadvantages of retaining district court jurisdiction for bid protest cases;

therefore, we draw no conclusions based on these data.

Proponents of retaining district court jurisdiction assert that small

businesses may be able to reduce the costs of filing a protest case in

federal court by filing in their local district court using counsel from those

local districts. Requiring small businesses to file all their judicial protest

cases with COFC could raise their protest costs, perhaps prohibitively. We

found that more small businesses filed in COFC (61 cases) than filed in

district courts (33 cases). Of the 33 small business cases filed in district

 

5

 Because COFC tracks bid protest cases as a separate category, we were able to obtain more recent

data for COFC from the COFC Clerk of Court.

6

 We considered a bid protester to be a small business if (1) the protester was identified as a small

business in the case files, (2) the attorney for the protester indicated that the protester was a small

business, or (3) the protester was registered as a small business with the Small Business

Administration.
B-282743

Page 4 GAO/GGD/OGC-00-72 Bid Protests

courts, 18 were filed in the protesters’ local district courts. All but 3 of

these 18 cases used legal counsel from outside the Washington, D.C., area.7

However, the legal counsel used were not necessarily located in the

districts in which the cases were filed. Of the 15 small business cases that

were not filed in the protester’s home district, 12 were filed in the D.C.

district, and 9 of the 15 cases used counsel from the Washington, D.C.,

area. In COFC, 15 of the 61 small business cases were filed by counsel

located outside the Washington, D.C., area. We had no data on whether the

protesters’ case costs, including attorney costs, were more or less in those

cases in which they filed in their local district courts or filed in COFC and

used non-D.C. area counsel.

With regard to potential jurisdictional issues associated with bid protest

cases, we found that the legal issues raised in the bid protest cases filed in

district courts and COFC fell into the same general categories. In both

forums, the issue raised most frequently was the propriety of agency

evaluation of proposals. However, COFC did not accept jurisdiction under

ADRA in every bid protest case filed in COFC. For example, COFC

transferred one case to district court for lack of jurisdiction; and in

another case, the U.S. Court of Appeals for the Federal Circuit reversed

COFC’s ruling that it did not have jurisdiction under ADRA.

With regard to COFC judges ability to travel for bid protest cases, we

found that COFC judges’ had traveled to hold hearings in two bid protest

cases between January 1, 1997, and August 1, 1999. The Chief Judge stated

that COFC judges could travel as necessary.

In both district courts and COFC, the results of bid protests were mixed. It

was not clear that small businesses were more likely to prevail in district

courts than COFC. The courts usually denied injunctive relief to protesters

regardless of whether they were small businesses or not. However, in

some cases the government voluntarily agreed to stay the performance of

its contract until the court ruled. In 30 district court cases and 29 COFC

cases, the courts dismissed the cases on the voluntary motion of the

protester or the protester and government jointly. In some cases the

voluntary dismissal was because the parties had reached a settlement that

responded, at least in part, to the protester’s claims. In actions other than

granting motions for voluntary dismissal, the courts generally ruled against

the protester, with only one district court ruling in the protester’s favor—a

 

7

 Where the attorney’s firm had more than one office location, we used the office address of the

attorney representing the protester.
B-282743

Page 5 GAO/GGD/OGC-00-72 Bid Protests

decision that was reversed on appeal. COFC ruled in favor of the protestor

in 19 cases, including 11 small business cases.

Currently, an eligible person or business may file a protest challenging a

federal contract award and the procedure by which the contract offers

were solicited in their choice of four forums: (1) the agency whose

procurement procedures are being challenged, (2) the U.S. General

Accounting Office (GAO), (3) U.S. district court, (4) or COFC. Agency

actions taken pursuant to GAO decisions may be reviewed by the U.S.

district courts or COFC.

Few bid protest cases were heard in federal district courts prior to 1970,

principally because district court jurisdiction over such cases was not

clearly established. In 1970 the U.S. Court of Appeals for the District of

Columbia Circuit ruled that challenges to contract awards could be filed in

district courts under the provisions of the Administrative Procedure Act. 8

In 1982, Congress authorized COFC to grant equitable relief, including

injunctive relief, in preaward protests—that is, cases filed prior to the time

the contract was awarded.9

 This statute also granted COFC “exclusive

jurisdiction” to grant equitable relief in “any contract claim brought before

the contract is awarded.” COFC did not have authority to hear postaward

protests.

ADRA provided that effective December 31, 1996, U.S. district courts and

COFC would have concurrent jurisdiction for federal bid protest cases—

whether filed before or after the agency awarded the contract.10 The act

also mandated that each court review such cases using the standards

applicable under the Administrative Procedure Act—the standards that

had been applied by the district courts since 1970. Under ADRA, district

courts and COFC may award any relief that the court considers

appropriate, except that monetary relief is limited to bid preparation and

proposal costs. ADRA also provided that federal district court jurisdiction

for bid protest cases would expire on January 1, 2001, unless extended by

Congress prior to that date.

 

8

 Scanwell Laboratories, Inc. v. Shaffer, 424 F.2d 859 (D.C. Cir. 1970).

9

 Federal Courts Improvement Act of 1982, P.L. 97-164.

10 Specifically, the concurrent jurisdiction covers “an action by an interested party objecting to a

solicitation by a Federal agency for bids or proposals for a proposed contract or to a proposed award

or the award of a contract or any alleged violation of statute or regulation in connection with a

procurement or proposed procurement.” (28 U.S.C. 1491(b)(1)).

Background
B-282743

Page 6 GAO/GGD/OGC-00-72 Bid Protests

In response to ADRA, and as agreed with the committees of jurisdiction,

our objectives were to (1) identify the number of bid protest cases filed in

the U.S. district courts and COFC between January 1, 1997, and April 30,

1999, that were filed by small businesses, the type of agencies involved

(civilian or defense), and the amount of the procurement at issue; (2)

identify the perceived advantages and disadvantages, particularly for small

businesses, of filing bid protest cases in each judicial forum—-the district

courts and COFC; and (3) obtain and review available data on the

characteristics of bid protest cases, particularly those filed by small

businesses, that could be used to assess these perceived advantages and

disadvantages.

We used several sources of information to identify bid protest cases. COFC

provided a list of bid protest cases filed in COFC from January 29, 1997,

through August 1, 1999.11 Because district courts do not track bid protest

cases as a separate civil case category, we used a variety of sources to

identify potential district court cases. These included data from the

Department of Justice, American Bar Association, other sources

recommended by both, and district court clerks of court. Because there is

no definitive list of district court bid protest cases, it is possible that our

list of such cases is incomplete. To identify the perceived advantages and

disadvantages of permitting district court jurisdiction to expire, we met

with representatives from bar associations, contractor associations, other

interested groups, and federal agencies; reviewed documents these groups

provided; and reviewed the legislative history of ADRA. The COFC Clerk of

Court provided a list of 118 bid protest cases—104 during our initial review

and 14 additional cases identified during the agency comment period. Our

final report includes all 118 cases.

For those potential bid protest cases identified, we obtained copies of

documents from the case files from the U.S. district courts or COFC and

used a data collection instrument to record a variety of information about

each case. We were unable to obtain these case file materials in 10 of the

94 potential district court cases identified.12 Complaints in 36 of 118 COFC

cases were sealed, and in 18 of these 36 cases the complete case file was

sealed. Moreover, incomplete or missing data precluded us from

determining with certainty how many of the companies that filed bid

protest cases in either the district courts or COFC were small businesses.

Our analysis of the potential advantages and disadvantages was based on

 11 No bid protest cases were filed in COFC between January 1, 1997, and January 28, 1997.

12 Among these 10 cases was a sealed case that we were permitted to review, but not copy, at the clerk

of court’s office.

Scope and

Methodology
B-282743

Page 7 GAO/GGD/OGC-00-72 Bid Protests

an analysis of the data available in the case files of the bid protest cases we

identified and attorney interviews. Where possible, we conducted

telephone interviews with the attorneys representing the parties in each

case to discuss their views regarding the reasons they chose to file in

district court or COFC and the advantages and disadvantages of each

judicial forum. We also discussed additional information on the dollar

amount of the procurement at issue and whether the protester was a small

business. For some cases the attorneys for one or more parties in the case

did not wish to discuss the case. Due to these data limitations, we cannot

generalize to all bid protest cases filed during the period of our review.

Additional details on our objectives, scope, and methodology are found in

appendix I.

We did our work in Washington, D.C., and Los Angeles, CA, between

March 1999 and January 2000 in accordance with generally accepted

government auditing standards. We requested comments from the Public

Contract Law Section of the American Bar Association, the Federal Bar

Association, the Secretary of Defense, the Attorney General, and the Chief

Judge of COFC, and their comments are discussed at the end of the letter.

We identified a total of 184 bid protest cases filed in the U.S. district courts

and COFC since January 1, 1997—66 district court cases in 31 separate

districts (through April 30, 1999) and 118 COFC cases (through August 1,

1999). Of this total, 52 of the district court cases had been closed by

August 1, 1999; and 111 of the COFC cases had been closed by January 18,

2000. (We were able to continually update our data for COFC cases during

our review.) COFC separately tracks bid protest cases, but district courts

do not. The protest cases we reviewed are listed in appendixes II (district

court) and III (COFC).

We reviewed the case files in each of the identified district court cases and

in each of the unsealed COFC cases.13 Table 1 shows the basic

characteristics of the 184 bid protest cases we reviewed. One of the cases

was filed in COFC, which maintained that it did not have jurisdiction and

transferred the case to district court. Another case was filed first in district

court and then in COFC, which dismissed the case because it was pending

in district court. We counted both of these cases as filings in each judicial

forum. In addition, one protester filed two separate cases in the same

district court involving a single solicitation, and another protester filed two

 

13 The district court permitted us access to the single sealed district court case. Information for this

case is aggregated with the data for all other district court cases.

Characteristics of Bid

Protest Cases Filed

Between January 1,

1997, and August 1,

1999
B-282743

Page 8 GAO/GGD/OGC-00-72 Bid Protests

separate cases in different district courts involving the same solicitation.

We counted these as four separate filings.

Complaints were sealed in 36 of the 118 COFC cases, and the entire file

was sealed in 18 of these 36 cases. For these 18 cases, no case details were

available in the case files, except the docket sheet. Consequently, the

COFC data shown in table 1 are based on the 100 unsealed cases we

reviewed, case file data available in those 36 cases in which only the

complaint was sealed, and data from attorney interviews on sealed cases.

U.S. District Courts COFC

Case characteristicaTotal cases

Small

business

cases b Total cases

Small

business

cases b

Total cases filed 66 33 118 61

 Preaward cases 10 2 26 12

 Postaward cases 56 31 78 44

Total cases under seal 1 1 18 5

Total cases closedc52 29 111 58

Type of agency procurement:

 Civil 35 13 32 21

 Defense 29 19 69 40

 Bothd 2 1 0 0

Dollar range of procurement

at issue:e

 Less than $1,000,000 8 8 9 7

 $1,000,000 to $10,000,000 20 15 29 20

 $10,000,001 to $50,000,000 10 3 37 19

 $50,000,001 to $100,000,000 1 0 18 2

 $100,000,001 to $500,000,000 3 0 5 1

 $500,000,001 to $1 billion 1 0 1 0

 More than $1 billion 2 1 1 0

a

The numbers in the table include data from unsealed cases; any data available for sealed cases

(e.g., docket sheets); and information from attorney interviews (e.g., whether protester was small

business).

b

For 9 of the 66 district court cases it was not clear if the case was filed by a small business. For 5 of

the 118 COFC cases, we could not determine from the case files or interviews whether the complaint

was filed by a small business.

c

Totals as of August 1, 1999, for district court cases and January 18, 2000, for COFC cases.

d

Two cases involved both defense and civilian agency defendants.

e

Actual or estimated amount available for 45 of 66 district court cases and 100 of 118 COFC cases.

For a number of cases the amount of the procurement is based on information from attorney

interviews.

Source: GAO analysis of district court and COFC case files and data from attorney interviews.

Table 1: Characteristics of Bid Protest

Cases Filed in the U.S. District Courts

and Court of Federal Claims During the

Period of Our Review
B-282743

Page 9 GAO/GGD/OGC-00-72 Bid Protests

More total bid protest cases, and more small business bid protest cases,

were filed in COFC than were filed in district courts. On the basis of

available data, we identified 33 district court cases and 61 COFC cases that

were filed by small businesses. We used an inclusive definition of small

business. We included a protester as a small business if (1) the protester

was identified as a small business in the case files, (2) the attorney for the

protester indicated that the protester was a small business, or (3) the

protester was registered as a small business with the Small Business

Administration.

Ten district court and 26 COFC cases involved preaward protests. The

district court cases were divided almost evenly between defense (29) and

civilian (35) procurements, and 69 of 100 unsealed COFC cases involved

defense procurements. Two of the district court cases included both

defense and civilian agency defendants.

In both the district courts and COFC, the amount of the procurement at

issue varied widely. The amounts ranged from about $100,000 to about $10

billion in the 45 district court cases for which data were available. For the

100 COFC cases for which data were available, the amounts ranged from

about $93,000 to about $2.7 billion. Whether grouped by total case filings

or small business case filings, the amount of the procurement at issue was

generally somewhat larger in COFC than in district court cases. About 11

of 45 district court cases involved procurements of no more than $1

million, and 38 of 45 district court cases involved procurements of no more

than $50 million. In COFC, 9 of 100 cases involved procurements of no

more than $1 million; 75 cases involved procurements of no more than $50

million. In COFC, 18 cases involved procurements of more than $50 million

but no more than $100 million; one district court case fell within this range.

Those who believe that Congress should not permit district court bid

protest case jurisdiction to expire believe that district courts offer

advantages that COFC does not. Similarly, those who believe that COFC

should have sole judicial jurisdiction over such cases believe that COFC

offers certain advantages that district courts do not.

Arguments in favor of retaining district court jurisdiction over bid protest

cases include the following:

• It can be less expensive for small businesses to file bid protest cases in

their local district courts. Requiring that all protest cases filed in federal

court be filed with COFC in Washington, D.C., raises the cost for all

protesters, but especially small businesses. For some small businesses,

Perceived Advantages

and Disadvantages of

Permitting District

Court Jurisdiction to

Expire
B-282743

Page 10 GAO/GGD/OGC-00-72 Bid Protests

this additional cost may be prohibitive. Proponents state that increased

costs could result from (1) travel costs for local counsel to travel to

Washington, D.C., for COFC hearings; or (2) the cost of hiring D.C. area

counsel, whose rates may be higher than those of local counsel in the

district where the protester is located.

• Although COFC has authority to travel to hear bid protest cases, this is not

a realistic alternative to filing in local district courts. Those filing bid

protest cases generally seek quick action from the courts, and it would be

difficult for COFC judges to travel on short notice—-for example, to

preside over hearings for temporary restraining orders.

• COFC is an Article I, not Article III,14 court (that is, COFC judges do not

have life tenure) and eliminating district court jurisdiction would remove

all Article III trial court jurisdiction for bid protest challenges.

• Given the broad jurisdiction granted under ADRA—e.g., any objection by

an interested party to an alleged violation of statute or regulation in

connection with a procurement or proposed procurement—the sunset of

district court jurisdiction has the potential to raise numerous jurisdictional

problems.

Arguments in favor of consolidating judicial bid protest jurisdiction in

COFC include:

• It would foster a uniform body of law in bid protest cases. A single court,

COFC, would decide bid protest cases; and a single court of appeals, the

U.S. Court of Appeals for the Federal Circuit, would hear appeals from

COFC. In contrast, there are 94 district courts and 12 circuit courts of

appeals that hear appeals from district court decisions.15 Thus, it is

possible to have conflicting interpretations of federal procurement law

among the 94 districts and 12 circuit courts of appeals.

• It would eliminate forum shopping whereby the protester seeks to select a

district court that may best serve its interest.

 14 This term refers to Article III of the U.S. Constitution. Judges appointed under Article III are

appointed to lifetime appointments and may be removed from office only through the impeachment

process. Judges appointed under Article I, such as COFC judges, are appointed for a specific number of

years, such as 15 years.

15 District courts are organized into 12 geographic circuits, with a court of appeals for each circuit.

Each court of appeals hears appeals from the district courts within its circuit. For example, the Third

Circuit Court of Appeals hears cases from district courts in Delaware, Pennsylvania, New Jersey, and

the U.S. Virgin Islands.
B-282743

Page 11 GAO/GGD/OGC-00-72 Bid Protests

• COFC can travel to hold hearings throughout the nation, if needed.

Some of the arguments for and against retaining district court jurisdiction

are policy arguments that cannot be addressed using data from the case

files. Examples would include whether it is desirable to retain an Article III

forum for bid protest cases or whether it is desirable to have a more

uniform body of procurement case law.

However, data from the cases may shed some light on some of the other

arguments. In reviewing the data available on these potential advantages

and disadvantages, we focused principally on data that could be obtained

from the case files regarding the characteristics of the bid protest cases

filed in district courts and COFC since January 1, 1997. This included the

(1) number of cases in district courts and COFC that were filed by small

businesses, (2) the dollar amount of the procurement at issue, (3) the

number of cases small businesses filed in their local district courts, (4) the

number of cases in which small businesses used local legal counsel, (5) the

legal issues raised in district court and COFC cases, and (6) the general

outcomes of small business protest cases filed in district courts and COFC.

We supplemented our case file reviews with attorney interviews. However,

these data provide a limited basis for assessing the advantages and

disadvantages of retaining district court jurisdiction for bid protest cases;

therefore, we draw no conclusions based on these data.

Proponents of retaining district court jurisdiction assert that eliminating

the jurisdiction will raise costs for companies filing bid protest cases. This

would be especially significant for small businesses with limited resources

that are located outside the Washington, D.C., area. Such businesses would

no longer be able to file cases in the districts in which they are located.

Proponents state that it is usually less expensive for small businesses not

located in the Washington, D.C., area to file their cases in their local

district courts using local counsel. Such counsel, it is argued, would

usually be less expensive than Washington, D.C., area counsel.

Although we do not know why each case was filed in a particular district

court or COFC, we found that more small business cases were filed in

COFC than in district courts. About half of the total bid protest cases we

reviewed in both COFC (61 of 118) and district courts (33 of 66) were filed

by small businesses. As shown in table 2, about half of all district court bid

protest cases (31 of 66) and about half of district court small business

cases (15 of 33) were filed in just two districts—-D.C. and Eastern Virginia.

The Eastern Virginia district is adjacent to the D.C. district; three of the

Case Data on Small

Business Protesters

Small Business Filings Were

Split Between District

Courts and COFC
B-282743

Page 12 GAO/GGD/OGC-00-72 Bid Protests

four cases filed in that district were filed in Alexandria, VA, directly across

the river from Washington, D.C.16

Total cases Small business cases

Cases filed in D.C. or Eastern

Virginia districts 31 15

 Filed by D.C. area-counsela 27 11

Filed by counsel located outside

D.C. area 4 4

Cases filed in other districts 35 18

 Filed by D.C.-area counsel 5 1

Filed by counsel located outside

D.C. area 30 17

a

We defined D.C. area counsel as those whose office addresses were in D.C. or the adjacent Virginia

and Maryland counties. Where the attorney’s firm had more than one office location, we used the

office address of the attorney representing the protester.

Source: GAO analysis of bid protest case files.

Of the 33 district court small business cases we identified, 18 were filed in

the protester’s local (or home) district, including 3 that were filed in the

D.C. or Eastern Virginia districts. In all but 3 of these 18 cases, the

protester used counsel from outside the Washington, D.C., area. However,

the counsel used was not necessarily located in the districts in which the

cases were filed. For example, a case filed in California used counsel from

D.C. Of the 15 small business cases that were not filed in the protester’s

home district, 12 were filed in the D.C. district, and 9 used counsel from

the D.C. area. The remaining three cases were filed in the districts of Utah,

Northern Illinois, and Southern New York, respectively.

We found that 25 of 117 COFC cases were filed by counsel outside the

Washington, D.C., area.17 Of the 61 COFC cases filed by small businesses,

15 were filed by counsel outside the Washington, D.C., area. We had no

data on whether the protesters’ case costs, including attorney costs, were

more or less in those cases in which protesters filed in their local district

courts or COFC and used non-D.C.-area counsel.

We interviewed 27 attorneys who represented plaintiffs in 28 of 66 district

cases and 70 attorneys who represented plaintiffs in 104 of 118 bid protest

cases. Some attorneys did not wish to discuss their cases. The attorneys’

reasons for their choice of judicial forum varied widely. For the 27

 16 Department of Defense headquarters (the Pentagon) is located in the Eastern District of Virginia. The

single Eastern District of Virginia bid protest case not filed in Alexandria was filed in Norfolk, Virginia.

17 Data were not available for one case.

Table 2: Use of Local and D.C. Area

Counsel in District Court Bid Protest

Cases Filed Between January 1, 1997,

and April 30, 1999

Protesters Who Filed

Locally Generally Used

Non-D.C.-Area Counsel

Reasons for Attorneys’

Choice of Judicial Forum

Varied Widely
B-282743

Page 13 GAO/GGD/OGC-00-72 Bid Protests

attorneys who filed in district courts, the reasons offered most frequently

for choosing district court were cost considerations (eight), time (seven)

and familiarity with the district court (six). Among other reasons

mentioned were the proximity of the district court; the COFC’s lack of

jurisdiction over a case; the district court offered greater opportunity for

discovery and injunctive relief; and fairness.

Attorney reasons for filing in COFC were too varied to be categorized.

Among the reasons mentioned were that COFC had more expertise in

complex procurement cases; COFC can move cases more quickly than

district courts, particularly compared to district courts with heavy criminal

caseloads; COFC has issued a large number of published opinions

compared to district courts; and there is less predictability in district court

outcomes. However, 45 of the 70 attorneys interviewed said they favored

retaining district court jurisdiction, believing that a choice of forum was

useful and desirable.

We reviewed the legal issues in the 66 district court and 100 unsealed

COFC cases (see app. IV). Our analysis was based on a review of

documents in the court case files. We found that the legal issues raised in

both forums fell into the same general categories. In both the district court

and COFC cases, the issue raised most frequently was the propriety of

agency evaluation of proposals.

Proponents of retaining district court jurisdiction state that (1) the

expiration of district court jurisdiction under ADRA may create

jurisdictional questions that could require further litigation to clarify; and

(2) if COFC declined jurisdiction, it is possible that some issues could not

be raised in any other court.

With regard to jurisdictional issues, COFC held in two cases, for example,

that it did not have jurisdiction to hear the dispute under ADRA. In one

case, COFC held that it lacked jurisdiction over a maritime bid protest

action and transferred the case to the district court for D.C.18 COFC

indicated that although it maintains concurrent jurisdiction with the

district courts to consider bid protest actions, jurisdiction over matters

arising in admiralty, including maritime contracts, has traditionally been

with the federal district courts. In the other case, the U.S. Court of Appeals

for the Federal Circuit reversed a COFC determination that it did not have

jurisdiction to hear a challenge to an agency’s determination to proceed

 

18 Bay Ship Management, Inc. v. United States, 43 Fed.Cl. 535 (1999).

Legal Issues Raised in Bid

Protest Cases Reviewed
B-282743

Page 14 GAO/GGD/OGC-00-72 Bid Protests

with contract award or performance in the face of a GAO protest, under 31

U.S.C. 3553(c)(1). 19

We also examined the outcomes of district court and COFC cases to

examine the outcomes for small businesses in each judicial forum. The

results shown in table 3 are broad categories of general case outcomes,

and we recognize that they do not capture the subtleties of individual

cases. As shown in table 3, in both district courts and COFC, small and

non-small business protesters were unlikely to prevail. In both courts,

injunctive relief was likely to be denied whether the protester was a small

business or not. However, in some cases the court did not rule on the

protester’s motion for injunctive relief, or the agency voluntarily agreed to

stay the performance of the procurement until the court ruled.

District courts COFC

General case outcomeaTotal cases

Small

business

cases Total cases

Small

business

cases

Court rulings on temporary

injunctive reliefb

 Granted 7 3 11 6

 Denied 34 22 47 26

Subtotal 41 25 58 32

Voluntary dismissalsc

 On motion of protester 15 8 11 5

On joint motion of protester

and government 15 7 18 6

Subtotal 30 15 29 11

Court actions other than

voluntary dismissals:d

 Ruled in favor of protester 1 0 19 11

 Ruled in favor of government 21 14 60 34

 Othere 0 0 3 2

Subtotal 22 14 82 47

a

The data in the table are based on data from unsealed case files; any data available on sealed cases

(e.g., docket sheets); and information from attorney interviews (e.g., whether protester was a small

business). The sum of the subtotals exceeds the number of cases reviewed because more than one

court action may have been occurred in a case. For example, a court may have granted a protester’s

motion for temporary injunctive relief, and the protester and government subsequently filed a joint

motion for voluntary dismissal based on a settlement agreement.

b

Includes only those cases in which the court ruled on the protester’s motion for temporary injunctive

relief. In some cases, the court did not rule on the protester’s motion for temporary injunctive relief, or

the protester withdrew its motion after the agency voluntarily agreed to stay performance of the

procurement until the court ruled on the merits of the case.

 

19 Ramcor Services Group, Inc. v. United States, 185 F.3d 1286 (Fed.Cir. 1999)

Case Outcomes in District

Courts and COFC Generally

Similar

Table 3: General Case Outcomes for Bid

Protest Cases Reviewed and Closed
B-282743

Page 15 GAO/GGD/OGC-00-72 Bid Protests

c

In some cases in which the court dismissed the case upon the motion of the protester or upon a joint

motion of the protester and government, the protester obtained some of the relief sought. For

example, the government may have agreed to withdraw the solicitation, reconsider the protester’s

offer, or reconsider its application of a specific criterion used in evaluating the offer.

d

Generally, these are cases in which the court ruled on motions for summary judgment or motions to

dismiss (other than voluntary dismissals).

e

Includes cases that do not fit the remaining categories, such as one COFC case in which the court

ruled that it did not have jurisdiction and transferred the case to district court.

Source: GAO analysis of bid protest case files.

A number of cases were closed with the court granting a motion for

voluntary dismissal either by the protester alone or by the protester and

government jointly. In some of these cases, the protester may have

received some of the relief sought. For example, the government agency

may have agreed to reconsider its application of a specific criterion used in

evaluating the offers it received. When the court ruled on actions other

than motions for voluntary dismissal, both district courts and COFC were

likely to rule for the government, although COFC ruled for small

businesses in a greater proportion of cases (11 of 47) than did district

courts (0 of 14).

Appendixes V (district courts) and VI (COFC) each include case

summaries of 10 examples of bid protest cases each—filed by small

businesses and 5 that were not filed by small businesses.

Proponents of retaining district court jurisdiction assert that COFC judges

may not be able to travel on short notice to hear bid protest cases filed by

businesses outside of the Washington, D.C., area. COFC told us that its

judges had traveled twice to hear a bid protest case during the period

January 1, 1997, through August 1, 1999. The Chief Judge of COFC said that

COFC judges could travel, if necessary, to hear cases.

We sent a draft of this report for comment to the Public Contract Law

Section of the American Bar Association, the Federal Bar Association, the

Secretary of Defense, the Attorney General, and the Chief Judge of COFC.

The Attorney General had no comments on the report. In his written

comments, the Acting General Counsel of the Department of Defense

noted that the report’s findings provided support for the Department’s

position that district court jurisdiction should be allowed to sunset.

The Chief Judge of COFC provided oral comments in a meeting on March

3, 2000. He noted that the report provided useful information on the

characteristics of bid protest cases that had not been previously available.

In reviewing the list of COFC cases we had reviewed, COFC’s Clerk of

Limited Data on COFC’s

Judges Ability to Travel

Limited Data on COFC

Judges’ Travel

Agency Comments and

Our Evaluation
B-282743

Page 16 GAO/GGD/OGC-00-72 Bid Protests

Court identified 14 additional bid protest cases that had not been

previously provided to us. The Chief Judge asked that we include an

analysis of these additional 14 cases in our final report, and we have done

so. As a result, our final report includes an analysis of 118 COFC bid

protest cases.

In his written comments, the chair of the American Bar Association’s

Section of Public Contract Law noted that (1) the report’s findings

confirmed that U.S. district courts remained an important judicial remedy

in bid protest cases, (2) the limited case data available do not provide

guidance as to the advantages and disadvantages associated with retaining

district court jurisdiction, (3) the case data do not provide a sound basis

on which to conclude that district court jurisdiction should be allowed to

sunset, and (4) potentially troublesome jurisdictional issues could generate

needless litigation should district court jurisdiction be permitted to sunset.

The Chair also provided more extensive comments on the issue of allowing

district bid protest jurisdiction to sunset that had been previously sent to

us. Our report focused on an empirical analysis of the cases that have been

filed in district courts and COFC since concurrent jurisdiction for bid

protests took effect—data not previously available. With these data we

were able to address many of the perceived advantages and disadvantages

of filing in each judicial forum. However, as we noted in our report, some

of the arguments for and against retaining district court bid protest

jurisdiction are policy arguments that cannot be addressed using data from

the case files.

The Chair of the Federal Bar Association’s Government Contracts Section

and the Chair of the Section’s Working Group on the Sunset of U.S. District

Court Bid Protest Jurisdiction provided as their comments a paper drafted

by the Working Group that had previously been provided to us. In those

comments, the Working Group concluded that district court bid protest

jurisdiction may be desirable for a number of reasons. The Working Group

also concluded that there are no clearly significant benefits to termination

of the district courts’ jurisdiction, but none of the factors it examined was

grave enough to compel the conclusion that continued district court

jurisdiction is absolutely necessary.

The comments of DOD, the American Bar Association, and the Federal Bar

Association are included in appendixes VII, VIII, and IX.

We are sending copies of this report to Senator Orrin Hatch, Chairman,

and Senator Patrick Leahy, Ranking Minority Member, Senate Committee

on the Judiciary; Representative Henry Hyde, Chairman, and
B-282743

Page 17 GAO/GGD/OGC-00-72 Bid Protests

Representative John Conyers, Ranking Minority Member, House

Committee on the Judiciary; Senator Fred Thompson, Chairman, and

Senator Joseph Lieberman, Ranking Minority Member, Senate Committee

on Governmental Affairs; and to Representative Dan Burton, Chairman,

and Representative Henry Waxman, Ranking Minority Member, House

Committee on Governmental Reform. We also are sending copies of this

report to the Honorable Janet Reno, Attorney General; the Honorable

Loren Smith, Chief Judge, COFC; the Honorable Leonidas Ralph Mecham,

Director, Administration Office of the U.S. Courts; the American Bar

Association, Section of Public Contract Law; the Federal Bar Association,

Government Contracts Section; and other interested parties. Copies of this

report will be made available to others upon request.

Please contact me or William Jenkins on (202) 512-8777 if you or your staff

have questions about this report. Major contributors to this report are

acknowledged in appendix X.

Richard M. Stana

Associate Director

Administration of Justice Issues
Page 18 GAO/GGD/OGC-00-72 Bid Protests

Contents

1 Letter

Appendix I 22

Objectives, Scope, and

Methodology

Appendix II 28

Bid Protest Cases

Filed in U.S. District

Courts Between

January 1, 1997, and

April 30, 1999

Appendix III 31

Bid Protest Cases

Filed in COFC

Between January 1,

1997, and August 1,

1999

Appendix IV 35

Summary of Legal

Issues Raised in U.S.

District Court and

COFC Bid Protest

Cases Reviewed
Contents

Page 19 GAO/GGD/OGC-00-72 Bid Protests

36

Cases Not Filed by Small Businesses 36 Appendix V

Examples of Bid

Protest Cases Filed in

U.S. District Courts

Between January 1,

1997, and April 30,

1999

Small Business Cases 38

41

Cases Not Filed by Small Businesses 41

Small Business Cases 44

Appendix VI

Examples of U.S.

Court of Federal

Claims Bid Protest

Cases Filed Between

January 1, 1997, and

August 1, 1999

Appendix VII 47

Comments From the

General Counsel,

Department of Defense

Appendix VIII 51

Comments from the

American Bar

Association, Section of

Public Contract Law
Contents

Page 20 GAO/GGD/OGC-00-72 Bid Protests

Appendix IX

Comments From the

Federal Bar

Association,

Government Contracts

Section

84

Appendix X 96

GAO Contacts and

Staff

Acknowledgments

Table 1: Characteristics of Bid Protest Cases Filed in the

U.S. District Courts and Court of Federal Claims

During the Period of Our Review

8

Table 2: Use of Local and D.C. Area Counsel in District

Court Bid Protest Cases Filed Between January 1, 1997,

and April 30, 1999

12

Table 3: General Case Outcomes for Bid Protest Cases

Reviewed and Closed

14

Table I.1: Number of Bid Protest Cases Filed in U.S.

District Courts and COFC for the Period Covered by

Our Review

23

Table II.1: District Court Bid Protest Cases Reviewed 28

Table III.1: Bid Protest Cases Filed in COFC, January 1,

1997, through August 1, 1999

31

Table IV.1: Summary of Legal Issues Raised in District

Court and COFC Bid Protest Cases Reviewed

35

Tables
Contents

Page 21 GAO/GGD/OGC-00-72 Bid Protests

Abbreviations

ABA American Bar Association

ADRA Administrative Dispute Resolution Act

COFC U.S. Court of Federal Claims

DOJ Department of Justice

FBA Federal Bar Association

FSS Federal Supply Schedule

GSA General Services Administration

IFB Invitation for Bids

INS Immigration and Naturalization Service

SBA Small Business Administration
Appendix I

Objectives, Scope, and Methodology

Page 22 GAO/GGD/OGC-00-72 Bid Protests

Since December 31, 1996, the United States district courts and the U.S.

Court of Federal Claims have had concurrent jurisdiction for federal bid

protest cases, whether the case was filed before or after the contract has

been awarded. District courts’ statutory jurisdiction for bid protest cases is

scheduled to expire on January 1, 2001. Our objectives were (1) to identify

the number of bid protest cases filed in the United States district courts

and the United States Court of Federal Claims (COFC) between January 1,

1997 and April 30, 1999, that were filed by small businesses, the type of

agencies involved (civilian or defense), and the amount of the procurement

at issue; (2) identify the perceived advantages and disadvantages,

particularly for small businesses, of filing bid protest cases in each judicial

forum (the district courts and COFC); (3) obtain and review available data

on the characteristics of district court and COFC bid protest cases,

particularly those filed by small businesses in each forum, that could be

used to assess these perceived advantages and disadvantages.

To obtain information on the number of bid protest cases filed in federal

district courts and COFC during the period January 1, 1997, through April

30, 1999, we used several sources of information. We obtained data from

COFC’s clerk of court on the number of bid protest cases filed in COFC

during this period. COFC provided data on cases filed through August 1,

1999. The Clerk of Court provided a list of 118 bid protest cases—104

during our initial review and 14 additional cases identified when the draft

report was sent to COFC for comment. Our final report includes all 118

cases.

There is no central source of data on the number of bid protest cases filed

in the district courts. The federal judiciary does not track bid protest cases

as a separate category of civil suit. We obtained information on the number

of possible such cases filed in district courts from the Commercial

Litigation Branch of the Department of Justice’s Civil Division, the

Executive Office for U.S. Attorneys, the American Bar Association, other

sources recommended by these organizations, and individual U.S. district

courts. We cross-checked the data provided by each source to develop a

single list. It is possible that there were some bid protest cases filed in

district courts during this period that we were unable to identify. We

identified 94 possible bid protest cases filed in the district courts between

January 1, 1997, and April 30, 1999.

The district courts provided requested documents from the case files for

all but 10 of the 94 possible district court bid protest cases we had

identified. Of these 10 cases, 1 was sealed (we were permitted to review

the file in the clerk’s office); 1 was never sent; 5 could not be located by
Appendix I

Objectives, Scope, and Methodology

Page 23 GAO/GGD/OGC-00-72 Bid Protests

the local district court based on the data we had about the case; and

district courts declined to provide case file documents for 3 cases that

were still under appeal or in trial, and considered to be open cases. After

reviewing the materials provided, we further determined that 6 of the

remaining 84 cases were duplicates of other cases, which left 78 possible

bid protest cases. After more detailed review of the materials provided for

these 78 possible bid protest cases, we determined that 65 were bid protest

cases and 13 were not. After reviewing the sealed case, we increased the

total number of bid protest cases to 66. For our definition of “bid protest

case,” we used the ADRA definition of “an action by an interested party

objecting to a solicitation by a Federal agency for bids or proposals for a

proposed contract or to a proposed award or the award of a contract or

any alleged violation of statute or regulation in connection with a

procurement or a proposed procurement.” 28 U.S.C. 1491(b)(1).

Of the 66 bid protest cases we identified, 1 had been transferred to the

district court by COFC. Another case was filed first in district court and

then in COFC, which dismissed the case because it was pending in district

court. We counted both of these cases as filings in each judicial forum. In

addition, one protester filed two separate cases in the same district court

involving a single solicitation, and another protester filed two separate

cases in different district courts involving the same solicitation. We

counted these as four separate district court case filings.

Table I.1 shows the total number of cases we identified as filed in each

court during the period January 1, 1997, through April 30, 1999, for district

courts and through August 1, 1999, for COFC.

Calendar year

District Courts (January

1, 1997 through April 30,

1999)

Court of Federal Claims

(January 1, 1997 through

August 1, 1999)

FiledaClosed Filed Closed

1997 24 24 39 39

1998 30 24 47 43

1999 12 4 32 29

Total 66 52 118 111

a

Case file reviews revealed that not all of the 94 cases originally identified as bid protest cases in

district courts were in fact bid protest cases.

Source: GAO analysis of data from federal agencies, COFC, and ABA.

COFC’s clerk of court identified 118 COFC bid protest cases filed between

January 1, 1997, and August 1, 1999. Our analysis of COFC cases is based

primarily on the 100 unsealed cases we were able to examine. It was not

possible to obtain needed documents in all of the COFC cases because 36

Table I.1: Number of Bid Protest Cases

Filed in U.S. District Courts and COFC

for the Period Covered by Our Review
Appendix I

Objectives, Scope, and Methodology

Page 24 GAO/GGD/OGC-00-72 Bid Protests

of the 118 cases (about 31 percent) included sealed complaints. For 18 of

these 36 cases, the entire case file was sealed, and we were not permitted

to view sealed documents. For the 18 sealed cases, we reviewed the

docket sheets any redacted court orders or opinions. Where possible, we

interviewed the attorneys representing the protester. For those 36 cases

with sealed complaints, we obtained and reviewed available unsealed case

file documents, most of which were redacted in part.

However, we do not know whether the 36 cases in which the complaints

were under seal were similar to or different from those 82 cases whose

complaints were not under seal. Although we have reviewed the partially

redacted opinions and other documents available in the 36 cases with

sealed complaints, it is important to note that such documents by their

very nature do not generally provide as complete a picture as nonredacted

documents. We supplemented our case file review with interviews of

attorneys who represented the protesters in COFC cases, including those

cases in which the complaint or file was sealed.

To identify the potential advantages and disadvantages of the elimination

of the district courts’ jurisdiction over bid protest cases—particularly for

small businesses—we reviewed the literature regarding the jurisdiction of

the district courts and COFC over bid protest cases; interviewed attorneys

who had filed bid protest cases in district courts, COFC, or both;

interviewed the assistant U.S. attorneys who represented the defendant

federal agencies; and interviewed representatives of associations and

interest groups whose members had been involved in bid protest cases.

These included such organizations as the Chamber of Commerce,

Association of General Contractors, Federal Bar Association (FBA),

American Bar Association (ABA), Small Business Administration (SBA),

Department of Justice’s Civil Division, the Defense Logistics Agency, the

Department of Commerce, and the National Defense Industrial Association

(NDIA). In addition, some organizations, such as ABA and NDIA, provided

written comments outlining the potential advantages for small businesses

of retaining district court jurisdiction.

To identify what the experience has been for those businesses, particularly

small businesses, who had filed bid protest claims in both district courts

and COFC, we used several different sources of information. We sought to

obtain the following information for each possible bid protest case we

identified that had been filed in U.S. District court from January 1, 1997,

through April 30, 1999, and for each COFC case filed from January 1, 1997,

through August 1, 1999:
Appendix I

Objectives, Scope, and Methodology

Page 25 GAO/GGD/OGC-00-72 Bid Protests

• the name of the company filing the protest;

• whether that company was a small business;

• the name of any intervening parties in the case (such as the firm that won

the procurement);

• a copy of the complaint, outlining the legal issues raised in the bid protest;

• a copy of any court order or opinion to determine whether the court ruled

in whole or in part in favor of the legal claims raised by the bid protester;

• the names and addresses of the attorneys of record for the bid protester;

• the names and addresses of the attorneys of record representing the

agency;

• the reasons why the protester chose to file in U.S. district court or COFC.

Using our list of possible bid protest cases filed in district courts, we sent

each district court in which at least one case had been filed the name and

docket number (if known) of the case(s) filed in that court. We contacted

the clerk of court in each of these 37 affected districts to request that the

clerk mail us a copy of the complaint, the response to the complaint, and

any court order or opinion filed in the case. We obtained these documents

for COFC cases directly from COFC in Washington, D.C. For district court

cases in the districts of D.C. and the Alexandria division of the Eastern

District of Virginia, we copied documents directly from the case files.

From these case file documents, we obtained the names of the businesses

filing the cases, the names of the defending agencies, and the names and

addresses of the lawyers for both the protesters and agencies. We

reviewed the files to identify the nature of the legal issues raised and the

outcomes of the cases. Where available in the files, we also obtained

information on the size and nature of the procurement and the size and

nature of the business that filed the protest (e.g., annual sales, computer

services, or other factors).

However, the case files did not always include information on the size and

nature of the business filing the protest or the size and nature of the

procurement in dispute. Therefore, to identify the number of small

businesses who filed protest cases in district courts and COFC, we used

several approaches. We compared the names of the companies who filed

bid protests with SBA’s PRO-Net database. However, small businesses are

not required to register with SBA. We also reviewed the case files to

determine if the court files indicated that the plaintiff was a small business.

In addition, we interviewed the attorneys who represented the businesses

that filed protests and asked them whether their clients were small

businesses and, if so, the basis for considering the company a small

business. If any of these sources indicated that the firm that filed the
Appendix I

Objectives, Scope, and Methodology

Page 26 GAO/GGD/OGC-00-72 Bid Protests

protest was a small business, we counted it as a small business. However,

not all attorneys were willing to discuss their cases. Given the data

limitations, the results should be considered an estimate of the number of

small businesses that filed in either district courts or COFC.

To supplement the information in the case files on the dollar amount and

nature of the procurement in dispute and to obtain information on why the

protester chose to file in district court or COFC, we used a structured

interview schedule to interview the attorneys of record for the businesses

who filed the protest and the agencies who were the defendants in these

cases. However, not all attorneys were willing to discuss their cases, and

our data on procurement amounts is based on a portion of the cases

reviewed. In some cases, the attorneys interviewed were able to estimate

the amount of the procurement but did not know the exact amount of the

procurement. Because of these limitations in the data, we have reported

only the range of the value of the procurements in dispute.

We interviewed 48 different attorneys in 52 district court cases. (Some

attorneys had more than one case.) Of these, 27 were attorneys for the

plaintiff (protester) in 28 cases, and 21 were attorneys for the defendant in

24 cases. We briefly spoke with four attorneys—two for the plaintiffs and

two for the defendants—but did not conduct an actual interview. For

example, one attorney explained that he was not at liberty to discuss the

case. We also spoke with a representative of an office that represented a

defendant but were unable to conduct an interview. In addition, we spoke

with 10 attorneys—two for the plaintiff and 8 for the defendants—in 9

different cases to confirm, in their opinions, that the cases from our

original list of 94 cases were not bid protest cases.

For COFC cases, where the case file identified the protester as a small

business firm or identified the amount of the disputed procurement, we

used the information from the case file. However, the majority of COFC

case files did not contain this information. For example, we were able to

identify 14 small business protesters from the case files. To supplement

our case file interviews, we conducted telephone interviews with 70

attorneys for the plaintiff (protester) in 104 of the 118 bid protest cases

filed in COFC between January 1, 1997, and August 1, 1999. (Some

attorneys had more than one case.) If the attorney indicated that his or her

client was a small business, we counted it as such. We also used the

attorney’s stated value of the procurement in those cases in which the

amount could not be determined from the case file.
Appendix I

Objectives, Scope, and Methodology

Page 27 GAO/GGD/OGC-00-72 Bid Protests

We then analyzed and summarized the information from the case files and

interviews to identify the common experiences, if any, of business that had

filed bid protest cases in the district courts and COFC during the period of

our review. This included categorizing the case outcomes in district courts

and COFC. Each of the cases was reviewed by an evaluator, who

completed the DCI, and an attorney from our Office of General Counsel,

who reviewed the DCIs and case files. Attorneys from our Office of

General Counsel also categorized the legal issues raised in the bid protest

cases filed in district courts and COFC.

We did our work in Washington, D.C., and Los Angeles between March

1999 and January 2000 in accordance with generally accepted government

auditing standards. We obtained written comments on a draft of this report

from the Department of Defense, the American Bar Association’s Section

of Public Contract Law, and the Federal Bar Association’s Government

Contracts Section. These comments are summarized at the end of the

letter and are contained in appendixes VII, VIII, and IX.
Appendix II

Bid Protest Cases Filed in U.S. District Courts

Between January 1, 1997, and April 30, 1999

Page 28 GAO/GGD/OGC-00-72 Bid Protests

This appendix lists the 66 district court bid protest cases that we identified

as filed between January 1, 1997, and April 30, 1999. The cases are

arranged by district and within district by year filed. The table also

indicates which cases were filed by small businesses. We counted a case as

a small business case if (1) the protestor was identified as a small business

in the case file documents; (2) the attorney who represented the protestor

said the protestor was a small business, or (3) the protestor had registered

with the Small Business Administration.

District/case name Year filed Small business case

District of Columbia

Correctional Vendors Association 1997

Dynamic Decisions, Inc.a 1997 •

Dynamic Decisions, Inc.a 1997 •

Information Systems & Networks Corp. 1997

Lake Michigan Contractors, Inc. 1997 •

Syska & Hennessy, Inc. 1997

TMC Technologies, Inc. 1997 •

United International Investigative Services,

Inc. 1997

United Valve Co. 1997 •

Amfac Resorts, LLC 1998

Aramark Sports and Entertainment Services,

Inc. 1998

Arthur D. Little, Inc. 1998

Correctional Vendors Association 1998

Dayton Granger, Inc. 1998 •

Dillingham Construction International, Inc. 1998

DSE, Inc. d/b/a Dayron 1998 •

The Iceland Steamship Co., Ltd.—Eimskip 1998

Information Handling Services, Inc. 1998

Launch Support Company, LLC 1998

NWT Inc. 1998 •

Wackenhut Corrections Corp. 1998

Worcester Brothers Co., Inc. 1998 •

Anadac, Inc. 1999

Bay Ship Management, Inc. 1999 •

Kira, Inc. 1999 •

Nick Chorak Mowing 1999 Sealed

WRD Venture; NWD Venture 1999

Eastern District of Virginia

Groome Transportation, Inc. 1997 •

Hunt Building Corporation 1997

Marine Hydraulics International, Inc. 1997 •

Omniplex World Services Corporation; MSM

Security Services, Inc. 1998 •

Northern District of Alabama

Pemco Aeroplex, Inc. 1998

Table II.1: District Court Bid Protest

Cases Reviewed
Appendix II

Bid Protest Cases Filed in U.S. District Courts Between January 1, 1997, and April 30, 1999

Page 29 GAO/GGD/OGC-00-72 Bid Protests

District/case name Year filed Small business case

District of Alaska

John MacDonald and Joyce MacDonald 1998 •

District of Arizona

Sun Belt Builders, Inc. 1997 •

Eastern District of California

Lewis C. Nelson and Sons, Inc. 1998

Northern District of California

Concord Disposal Service, Inc. 1997

National Airmotive Corporation 1998 •

Southern District of California

San Diego Beverage & Kup 1998 •

Maxwell Technologies, Inc. 1998

Middle District of Florida

Braswell Services Group, Inc. 1997 •

Northern District of Florida

Hedgecock Electric, Inc. 1997 •

Middle District of Georgia

Spectrum Landscape Services, Inc. 1998

Northern District of Illinois

Sabbia Corporation 1997 •

Neals Janitorial Service 1997 •

Southern District of Illinois

Russo & Sons, Inc. 1999 •

District of Kansas

Lawrence Medical Equipment, Inc. 1998

Eastern District of Kentucky

Outdoor Venture Corporation 1998 •

District of Maryland

MilVets Systems Technology, Inc. 1998 •

District of Massachusetts

American Science and Engineering, Inc. 1999

Southern District of Mississippi

Madison Services, Inc. 1997 •

District of New Mexico

Peacock, Myers & Adams, P.C. 1998 •

Southern District of New York

Abner Realty, Inc. 1997 •

Southern District of Ohio

Waste Control Specialists, LLCb 1999

Western District of Oklahoma

David Mitchell Construction, Inc. 1999

Eastern District of Pennsylvania

United Ammunition Container, Inc. 1997 •

Baldt, Incorporated 1998

American Competitiveness Institute 1998

FCA Holdings, Inc. 1997

Western District of Pennsylvania

R.A. Glancy & Sons 1999
Appendix II

Bid Protest Cases Filed in U.S. District Courts Between January 1, 1997, and April 30, 1999

Page 30 GAO/GGD/OGC-00-72 Bid Protests

District/case name Year filed Small business case

District of South Carolina

South Carolina Military Department 1999

District of South Dakota

James N. Danielson 1998 •

Eastern District of Texas

Walsh Distribution, Inc. 1999

Northern District of Texas

Waste Control Specialists, LLCb 1997

District of Utah

Booth & Associates, Inc. 1997 •

District of Virgin Islands

HAP Construction, Inc. 1998 •

Western District of Washington

Sterile Surgical Systems, LLC 1998

a

Both of the Dynamic Decisions filings arose from the same solicitation.

b

Waste Control filed two suits arising from the same solicitation—one in the Southern District of Ohio

and one in the Northern District of Texas.

Sources: District court case files, attorney interviews, Small Business Administration.
Appendix III

Bid Protest Cases Filed in COFC Between

January 1, 1997, and August 1, 1999

Page 31 GAO/GGD/OGC-00-72 Bid Protests

This appendix includes a listing of the118 bid protest cases that COFC’s

Clerk of Court provided to us. Table III.1 lists the cases and indicates

whether the complaint was sealed, the entire case file was sealed, and the

case was filed by a small business protestor. We counted a case as a small

business case if (1) the case was identified as a small business in the case

files, (2) the attorney for the protestor indicated that the protestor was a

small business, or (3) the protestor was registered as a small business with

the Small Business Administration.

Case name

Docket

number

Sealed

complaint Sealed case

Small business

casea

1997 cases

Cubic Applications, Inc. 97-29C •

Surface Technologies

Corp., Inc.

97-30C

Cincom Systems, Inc. 97-72C •

Day & Zimmerman 97-90C

Sabreliner Corporation 97-119C

Asilomar Management Co. 97-134C •

Allied Technologies Group,

Inc.

97-143C • •

Greater Richmond

Cleaning, Inc.

97-164C •

Mike Hooks, Inc. 97-181C •

Minor Metals, Inc. 97-194C •

J.C.N. Construction Co.,

Inc.

97-238C •

Graphic Data, LLC 97-256C •

W & D Ships Deck Works,

Inc.

97-308C •

Analytical & Research

Technology, Inc.

97-380C •

ATA Defense Industries,

Inc.

97-382C •

Aero Corporation, S.A. 97-416C •

Lyons Security Services,

Inc.

97-505C •

CC Distributors, Inc. 97-517C •

Redland Genstar, Inc. 97-533C

Alfa Laval Separation, Inc. 97-536C

The Famous Construction

Co.

97-555C •

Delbert Wheeler

Construction, Inc.

97-586C •

Alliant Techsystems, Inc. 97-626C

SmithKline Beecham 97-633C

Tecom, Inc. 97-663C •

HSQ Technology, Inc. 97-667C •

Table III.1: Bid Protest Cases Filed in

COFC, January 1, 1997, through August

1, 1999
Appendix III

Bid Protest Cases Filed in COFC Between January 1, 1997, and August 1, 1999

Page 32 GAO/GGD/OGC-00-72 Bid Protests

Case name

Docket

number

Sealed

complaint Sealed case

Small business

casea

Wackenhut International,

Inc.

97-680C

Peirce-Phelps, Inc. 97-683C •

CCL, Inc. 97-721C •

Brickwood Contractors, Inc. 97-844C •

ECDC Environmental 97-723C

FORE Systems Federal,

Inc.

97-731C •

The Centech Group 97-740C •

Clark Construction Group,

Inc.

97-749C • •

Roxco, Ltd. 97-768C •

Scientech, Inc. 97-824C

RSL Electronics, Ltd. 97-837C •

Candle Corp. 97-851C

Consolidated Services, Inc. 97-855C

1998 cases

Informatics Corp. 98-16C •

Carter Industries, Inc. 98-27C •

Washington Baltimore

Cellular Ltd. Partnership

98-50C

Meir Dubinsky 98-56C •

United International

Investigative Services, Inc.

98-80C

Metric Construction, Inc. 98-91C

Son Broadcasting, Inc. 98-115C •

CRC Marine Services, Inc. 98-128C •

Pike’s Peak Family

Housing, Inc.

98-147C

Ramcor Services Group,

Inc.

98-152C • •

United International

Investigative Services, Inc.

98-153C

Modern Technologies, Inc. 98-309C •

John C. Grimberg Co. 98-338C

Hewlett-Packard Company 98-406C •

Talton Holdings 98-409C • •

FN Manufacturing, Inc. 98-447C • •

Sealed caseb Sealed case • •

Firearms Training Systems,

Inc.

98-476C •

Winstar Communica-tions 98-480C

Advanced Data 98-495C • •

MVM Inc. 98-520C

The Trane Company 98-559C

Miller Holzworth 98-576C •

Phoenix Air Group 98-602C
Appendix III

Bid Protest Cases Filed in COFC Between January 1, 1997, and August 1, 1999

Page 33 GAO/GGD/OGC-00-72 Bid Protests

Case name

Docket

number

Sealed

complaint Sealed case

Small business

casea

Torrington Company 98-613C

Metric Systems 98-616C

California Marine Cleaning,

Inc.

98-636C •

CCL Service Corporation 98-664C •

PCC Federal Systems 98-692C • • •

Adirondack Construction 98-698C •

United International 98-729C

ITT Federal Services 98-731C • •

Hewlett-Packard Company 98-738C • •

Data Systems 98-745C •

Synectics, Inc. 98-746C •

Anderson Columbia

Environmental, Inc.

98-759C

Institute for Captive

Chimpanzee Care and

Well-Being, Inc.

98-780C •

Universal Systems and

Technologies, Inc.

98-806C •

Beautify Professional

Cleaning Services, Inc.

98-829C •

U.S. Investigations

Services, Inc.

98-869C

Input/Output Technology,

Inc.

98-836C • •

Forestry Surveys 98-844C •

Meir Dubinsky 98-884C •

DGS Contract Service, Inc. 98-891C • •

Pemco Aeroplex, Inc. 98-899C

Indiana Chair Frame

Company

98-927C •

Protec, Inc. 98-932C • •

1999 cases

105 West Adams Building,

LLC

99-3C • • •

S.J. Thomas Co., Inc. 99-70C •

OMV Medical, Inc. 99-74C • • •

OMV Medical, Inc. 99-75C • • •

Envirocare of Utah 99-76C

Science Applications 99-81C •

District of Columbia Parking

Associates

99-86C

Marine Hydraulics

International, Inc.

99-107C

Ryan Company 99-113C

Chas. H. Tompkins

Company

99-122C
Appendix III

Bid Protest Cases Filed in COFC Between January 1, 1997, and August 1, 1999

Page 34 GAO/GGD/OGC-00-72 Bid Protests

Case name

Docket

number

Sealed

complaint Sealed case

Small business

casea

MVM, Inc. 99-135C • •

MVM, Inc. 99-136C • •

MVM, Inc. 99-137C • •

Seattle Security Services,

Inc.

99-139C •

Cubic Defense System, Inc. 99-144C • •

Akal Security, Inc. 99-149C • •

Kellie W. Tipton

Construction Company

99-183C • • •

Bay Ship Management, Inc. 99-184C •

American Renovation &

Construction

99-171C •

Meir Dubinsky 99-191C •

MVM, Inc. 99-220C

Beta Analytics International,

Inc.

99-222C •

Acra, Inc. 99-337C •

Hewlett-Packard Company 99-358C • •

Brickwood Contractors, Inc. 99-367C •

Brickwood Contractors, Inc. 99-388C •

Impresa Construzioni 99-400C • •

Stratos Mobile 99-402C •

Cubic Defense Systems 99-483C

J & D Maintenance and

Services

99-484C • • •

Unified Architecture and

Engineering, Inc.

99-414C •

ES-KO, Inc. 99-528C • •

a

Where possible, for sealed cases we attempted through attorney interviews to determine if the

protestor was a small business. In cases where we have noted that the case files were sealed and the

protestor was a small business, the identification of the protestor as a small business was based on

attorney interviews.

b

The name of the protestor was not available for this case in which the names of the parties were

sealed.

Sources: COFC Clerk of Court, case files, and interviews with protestor attorneys.
Appendix IV

Summary of Legal Issues Raised in U.S.

District Court and COFC Bid Protest Cases

Reviewed

Page 35 GAO/GGD/OGC-00-72 Bid Protests

We reviewed the legal issues raised in each of the 65 unsealed bid protest

cases filed in U.S. district courts between January 1, 1997, and April 30,

1999, and each of the 100 unsealed COFC cases filed between January 1,

1997, and August 1, 1999. The table below shows the major categories of

issues raised.

Legal issue

Number of cases in which issue was

raised

District CourtaCOFCa

Solicitation issuesb 24 25

Evaluation and source selectionc 26 54

Responsibility 2 5

Propriety of discussions 7 19

Bid Rejectiond 5 9

Procurement integritye 0 5

Override of Competition in Contracting Act

stay of performance 5 1

Postaward procurement-related actionsf 7 8

Small business issuesg 6 5

Otherh 3 2

a

Because some cases raised more than one issue, the total of the individual entries exceeds the

number of cases reviewed.

b

Includes specification challenges, bundling of requirements, failure to solicit, sole-source awards,

multiple awards, use of sealed bidding versus negotiation, and cancellation of

solicitation/resolicitation.

c

Includes technical or cost proposal evaluation, including evaluation of past performance/experience;

waiver of requirements; cost/technical trade-off or best value determinations; exclusion from the

competitive range; and favoritism, bias, or unfair treatment in the evaluation of proposals.

d

Includes responsiveness and late bids.

e

Includes agency release of information and insider information.

f

Includes contract modifications, exercise of contract options, and termination of contract.

g Includes Standard Industrial Classification code and size determinations, nonresponsibility

determinations requiring referral to SBA, and small business preferences.

h District court cases include one case that could not be categorized due to a lack of information in the

file, and two cases brought against GAO. The two COFC cases involve Equal Access to Justice Act

fees related to a protest action.

Source: GAO analysis of bid protest cases.

Table IV.1: Summary of Legal Issues

Raised in District Court and COFC Bid

Protest Cases Reviewed
Appendix V

Examples of Bid Protest Cases Filed in U.S.

District Courts Between January 1, 1997, and

April 30, 1999

Page 36 GAO/GGD/OGC-00-72 Bid Protests

This appendix includes examples of bid protest cases filed in U.S. District

Courts between January 1, 1997, and April 30, 1999. The appendix includes

examples of five cases filed by protestors not identified as small

businesses and five cases filed by small businesses. The docket numbers

are shown in parentheses.

Launch Support Company, LLC v. United States (Case No. 1:98CV02145)

Launch Support Company filed this postaward bid protest case in the U.S.

District Court for the District of Columbia in 1998. Launch Support

submitted an unsuccessful proposal in response to a joint Air Force/

National Aeronautics and Space Administration (NASA) request for

proposals to provide base operation services at Kennedy Space Center,

Cape Canaveral Air Station, and Patrick Air Force Base. Launch Support

claimed that the government’s cost realism analysis of the winning

proposal (submitted by Space Gateway) was unreasonable and that its

selection decision was improper. In an October 16, 1998, order, the district

court granted the defendant’s motion for summary judgment and

dismissed the complaint. The court found that the agency’s cost realism

analysis and the agency’s selection of Space Gateway was not

unreasonable.

Wackenhut Corrections Corporation v. United States (Case No. 98-1541)

Wackenhut Corrections Corporation filed this postaward bid protest case

in U.S. District Court for the District of Columbia in 1998. Wackenhut’s

proposal was eliminated from the competition for a Bureau of Prisons

(BOP) contract to operate a private prison for inmates that were to be

transferred from the District of Columbia’s Lorton Correctional Institution.

One of the requirements in the request for proposal was the demonstration

of legal authority to perform the contract. Wackenhut’s proposal was

rejected because, in BOP’s view, the firm had not clearly demonstrated

that it had the legal authority to operate a private prison housing federal

inmates at the proposed North Carolina site. In a July 10, 1998, order, the

district court denied plaintiff’s motion for a preliminary injunction. The

Court found that Wackenhut had not made a sufficient threshold showing

that BOP’s decision was arbitrary or capricious, because there were

questions about the firm’s authority to construct a facility for out-of-state

inmates in North Carolina. On December 18, 1998, the plaintiff stipulated

to a dismissal of the case with prejudice, which the court granted.

Cases Not Filed by

Small Businesses
Appendix V

Examples of Bid Protest Cases Filed in U.S. District Courts Between January 1, 1997, and

April 30, 1999

Page 37 GAO/GGD/OGC-00-72 Bid Protests

Aramark Sports and Entertainment Services, Inc. v. United States (Case

No. 1:98CV01990)

Aramark Sports and Entertainment Services filed this preaward bid protest

case in the U.S. District Court for the District of Columbia in 1998. The

plaintiff objected to provisions of a prospectus issued by the National Park

Service seeking an operator for concession services at the Glen Canyon

National Recreation Area for a 15-year period, commencing when the

plaintiff’s current concessions contract expired. Aramark claimed that the

terms of the prospectus forced it to forego statutory rights, including (1)

the right of preference in the renewal of the concession contract; (2) the

requirement that upon expiration or termination of a concession contract,

the prior concessioner must be paid the sound value of its interest in the

property used in the performance of the concession contract; and (3) the

requirement that any concessioner must be granted a reasonable

opportunity to make a profit on its operations as a whole commensurate

with the capital invested and the obligations assumed. The agency

withdrew the prospectus, and agreed to review the prospectus and resolve

various issues raised by the complaint. On February 16, 1999, the parties

moved jointly to dismiss the case without prejudice, and the court granted

the motion.

ANADAC, Inc. v. United States (Case No. 1:99CV00169)

ANADAC filed this postaward bid protest case in the U.S. District Court for

the District of Columbia in 1999. The plaintiff objected to the Immigration

and Naturalization Service’s (INS) award of a contract for live-scan

systems designed to capture the fingerprints of naturalization applicants

for electronic submission to the Federal Bureau of Investigation (FBI). The

plaintiff claimed that (1) the awardee (Digital Biometrics) failed to

demonstrate its ability to comply with the technical requirements of the

solicitation, (2) the awardee did not have the financial capability to

perform, and (3) INS relaxed delivery requirements for the awardee. On

February 19, 1999, the district court denied ANADAC’s motion for a

preliminary injunction, finding that the plaintiff had not demonstrated a

substantial likelihood of success on the merits. The court found that

ANADAC did not provide any factual basis to demonstrate that the

awardee had failed its technical demonstration, that a reasonable basis

existed for INS’ financial responsibility determination, and that the

delivery schedule fell within the statement of work. On March 4, 1999, the

plaintiff moved to dismiss the case, and the court granted the motion.
Appendix V

Examples of Bid Protest Cases Filed in U.S. District Courts Between January 1, 1997, and

April 30, 1999

Page 38 GAO/GGD/OGC-00-72 Bid Protests

Lawrence Medical Equipment, Inc. v. United States (Case No. 98-CV-4153)

Lawrence Medical Equipment filed this postaward bid protest case in the

U.S. District Court for the District of Kansas in 1998. Lawrence Medical

Equipment submitted a proposal to provide in-home oxygen and other

respiratory services for veterans or other beneficiaries receiving benefits

through Veterans Administration medical centers in Missouri, Kansas, and

Illinois and was not selected for award. Lawrence claimed that its proposal

offered the lowest price for the locations covered by its proposal and that

its technical and past performance qualifications matched, if not exceeded,

those of Home Care, the awardee. Lawrence also claimed that Home Care

did not meet certain accreditation requirements contained in the

solicitation.

On October 6, 1998, the court denied Lawrence’s motion for preliminary

injunction, finding that although the firm offered the lowest price, its

proposal did not receive an acceptable technical/past performance score

and that the agency evaluation of the proposals was not unreasonable. The

court also found that the awardee was an accredited offeror as required by

the solicitation.

On December 14, 1998, Lawrence filed a motion to dismiss the case

without prejudice, in order to pursue administrative challenges. Despite

government opposition to the dismissal, the Court granted the motion on

March 3, 1999.

Worchester Brothers Co., Inc. v. United States (Case No. 1:98CV01634)

Worchester Brothers Co. filed this postaward bid protest case in the U.S.

District Court for the District of Columbia in 1998. The National Park

Service had issued a request for proposals for the stabilization and

preservation of the Washington Monument. Worchester Brothers, an

expert in monument restoration and masonry, claimed that the awardee

was given a higher technical rating than it deserved and that the evaluation

was not done in accordance with the solicitation requirements. The

defendants stated that the awardee’s proposal had both the highest overall

technical score and the lowest overall total price and, therefore, offered

the best value to the government. On July 30, 1998, in an oral bench

opinion, the district court granted the National Park Service’s motion for

summary judgment and ordered the case dismissed.

Small Business Cases
Appendix V

Examples of Bid Protest Cases Filed in U.S. District Courts Between January 1, 1997, and

April 30, 1999

Page 39 GAO/GGD/OGC-00-72 Bid Protests

Kira, Inc. v. United States (Case No. 1:99CV00930)

Kira, Inc., filed this postaward bid protest case in the U.S. District Court

for the District of Columbia in 1999. Kira objected to the award of a

contract, under SBA’s section 8(a) program, for military family housing

maintenance at Keesler Air Force Base in Mississippi. Kira had protested

the awardee’s size status to SBA, which determined that the awardee was

not a small business under the relevant Standard Industrial Classification

(SIC) code. Kira filed suit when the Air Force refused to terminate the

contract. After the complaint was filed in district court, the Air Force

terminated the contract and awarded it to Kira. On May 20, 1999, the

plaintiff moved to dismiss the case without prejudice, and the court

granted the motion.

Sun Belt Builders, Inc. v. United States (Case No. CV 97-106)

Sun Belt Builders, Inc., filed this case in U.S. District Court for the District

of Arizona in 1997. Sun Belt Builders submitted the low bid on a U.S. Army

Corps of Engineers invitation for bids (IFB) for construction of the Tucson

Diversion Channel Recreational Development in Pima County, Arizona.

However, Sun Belt’s bid was rejected as nonresponsive because the

certificate of authority for the power of attorney attached to the bid bond

was not dated, calling into question the enforceability of the bid bond. The

IFB required bidders to furnish a bid guarantee at the time of bid

submission. Sun Belt claimed that (1) a dated certificate on a power of

attorney is not a responsiveness requirement; and (2) if a dated certificate

is required, the Corps should have waived or allowed it to cure the

deficiency. On May 9, 1997, the district court granted the Corp’s motion to

dismiss, finding that the bid was nonresponsive and that the Corps’ refusal

to waive the defect or permit Sun Belt to cure it was not arbitrary.

Braswell Services Group, Inc. v. United States (Case No. 97-1409-Civ-J10C)

Braswell Services Group filed this postaward bid protest case in the U.S.

District Court for the Middle District of Florida in 1997. Braswell stated

that it had submitted low offers in response to Navy requests for proposals

for three ship repair contracts. However, Braswell claimed that its offers

were rejected because of a negative past performance evaluation on

another contract, to which the firm claimed the agency had not given it the

opportunity to respond. Braswell also claimed that the agency’s evaluation

was conducted in bad faith and with the specific intent of harming the

firm. On December 9, 1997, the district court denied Braswell’s motions for
Appendix V

Examples of Bid Protest Cases Filed in U.S. District Courts Between January 1, 1997, and

April 30, 1999

Page 40 GAO/GGD/OGC-00-72 Bid Protests

a temporary restraining order and a preliminary injunction, finding that the

firm had not shown a likelihood of success on the merits. On December 10,

1997, Braswell submitted a motion to dismiss the case without prejudice,

which the Court granted.

United Valve Co. v. United States (Case No. 97CV00713)

United Valve Company filed this postaward bid protest case in the U.S.

District Court for the District of Columbia in 1997. United Valve submitted

a proposal to provide air turbine starter kit overhauls for C-130 aircraft at

Tinker Air Force Base and was not selected for the award. United Valve

filed a complaint in district court, stating that the Air Force had engaged in

an impermissible action. United Valve alleged that the Air Force, without

informing it, had informed another offeror that the Air Force intended to

award the contract to United Valve. The other offeror then submitted a

lower offer and was selected for the award. On December 23, 1997, the

parties filed a stipulation of settlement in which the Air Force agreed to

limit the amount of work performed under the contract and to not exercise

the contract’s options.
Appendix VI

Examples of U.S. Court of Federal Claims Bid

Protest Cases Filed Between January 1, 1997,

and August 1, 1999

Page 41 GAO/GGD/OGC-00-72 Bid Protests

This appendix includes examples of bid protest cases filed with COFC

from January 1, 1997, through August 1, 1999. The appendix includes

examples of five cases filed by businesses that were not small businesses

and five cases filed by small businesses. The docket numbers are shown in

parentheses.

Wackenhut International, Inc. v. United States (No. 97-680C)

This postaward bid protest case was filed by Wackenhut International,

Inc., and Wackenhut De Guatemala, S.A., A Joint Venture. The protestor

sought injunctive and declaratory relief setting aside the award of the

contract by the U.S. Department of State to Inter-Con Security Systems,

Inc., for security guard services at the U.S. Embassy in Guatemala.

Wackenhut and Inter-Con submitted proposals in response to the

solicitation. Wackenhut contended that the agency improperly gave the

Inter-Con proposal a 5-point evaluation preference, available to U.S.

contractors in guard contracts abroad pursuant to 22 U.S.C. §4864.

Wackenhut alleged that Inter-Con was not properly licensed and, thus, its

proposal was not entitled to the preference. Wackenhut also contended

that the Inter-Con proposal failed to meet the solicitation’s subcontracting

limitations and that the evaluation of Inter-Con’s technical proposal for

past performance/experience and key personnel was improper. The

government contended that Wackenhut’s claims were without merit.

In a January 13, 1998, published decision, the court granted the

government’s and Inter-Con Security’s cross-motions for summary

judgment. The court found that licensing was a performance requirement,

that the subcontracting limitation challenge was meritless, and that the

evaluation was proper. Judgment was entered dismissing the complaint on

January 14, 1998.

Pike’s Peak Family Housing, LLC v. United States (No. 98-147C)

This postaward bid protest case, filed by Pike’s Peak Family Housing, LLC,

involved an Army Corps of Engineers solicitation for privatization of

family housing at Fort Carson in Colorado Springs, Colorado. The contract

was awarded to Keller/Catellus Fort Carson, LLC, whose proposal received

the highest evaluated score. Pike’s Peak, which received the sixth highest

score, filed suit in COFC protesting the propriety of the agency’s

evaluation of proposals and discussions.

Cases Not Filed by

Small Businesses
Appendix VI

Examples of U.S. Court of Federal Claims Bid Protest Cases Filed Between January 1, 1997,

and August 1, 1999

Page 42 GAO/GGD/OGC-00-72 Bid Protests

On April 27, 1998, the complaint was voluntarily dismissed with prejudice

on the basis of a settlement agreement entered between the plaintiff and

defendant.

United International Investigative Services, Inc. v. United States (No. 98-

153C)

This postaward bid protest case, filed by United International Investigative

Services, Inc., concerned a procurement for guard services at federal

courthouses in four states and Puerto Rico. After a technical evaluation

board’s (TEB) initial evaluation of proposals, United International’s

proposal had the highest average technical score and offered the lowest

price. The technical proposals were subsequently rescored by one member

of the TEB, after which the technical score of United International’s

proposal tied for fifth place.

After several additional rounds of best and final offers, United

International’s proposal still offered the lowest price and received a

slightly higher overall point score (including technical and price factors)

than the proposal submitted by MVM, Inc., which offered the second

lowest price.

Upon further review, the contracting officer ultimately raised the MVM

proposal’s score by one point for its technical merit, resulting in MVM’s

proposal receiving the highest overall point score. MVM was awarded the

contract. United International filed suit in COFC. United International

challenged the evaluation of proposals, contending that because its

proposal was substantially technically equal to MVM’s, it should have been

awarded the contract on the basis of its lower price.

In an October 21, 1998 published decision (reissuance of an order filed

under seal on August 3, 1998), the court granted the government’s motion

for summary judgment, ruling that any errors in this procurement were de

minimis, did not prejudice the protestor, and did not warrant overturning

the award.

On September 8, 1998, United International appealed to the U.S. Court of

Appeals for the Federal Circuit, which affirmed COFC’s ruling on May 6,

1999, in an unpublished decision.
Appendix VI

Examples of U.S. Court of Federal Claims Bid Protest Cases Filed Between January 1, 1997,

and August 1, 1999

Page 43 GAO/GGD/OGC-00-72 Bid Protests

Envirocare of Utah, Inc. v. United States (No. 99-76C)

This preaward bid protest case, filed by Envirocare of Utah, Inc.,

challenged the terms of a solicitation issued by the Army Corps of

Engineers for the removal of radioactive and other hazardous wastes at

various sites. The Corps contemplated awarding up to 10 indefinitedelivery/indefinite-quantity contracts for a total value of about $400

million. Awards were to be based on the best value offered to the

government.

Among other challenges,1

 Envirocare contended that the solicitation failed

to include the Federal Acquisition Regulation (FAR) provisions governing

the acquisition of commercial items.

The Corps maintained that disposal of radioactive wastes was not a

commercial item acquisition and that the solicitation was not required to

include the FAR provisions cited by the protestor.

In a June 11, 1999, published decision (reissuance of a decision filed under

seal on May 28, 1999), the court granted the government’s motion to

dismiss, in part, and entered judgment for the defendant, ruling that (1) the

disposal of radioactive waste services did not fall within the FAR definition

of commercial items and (2) protestor’s remaining challenges lacked merit.

On July 19, 1999, Envirocare appealed to the U.S. Court of Appeals for the

Federal Circuit. A decision, without published opinion, was issued by that

court on September 21, 1999, dismissing the appeal on the basis of a

voluntary dismissal filed by the plaintiff.

Chas. H. Tompkins Company v. United States (No. 99-122C)

This preaward bid protest case filed by Chas. H. Tompkins Company

involved a solicitation for construction of three new buildings at the

Federal Bureau of Investigation’s (FBI) Quantico, VA facility. The

solicitation required each bidder to supply at least five references

regarding its performance of the same or similar work within the prior 3

years and specified that the projects should be within 10 percent of the bid

price.

 

1

 Envirocare also challenged the solicitation terms regarding licensing and the evaluation of

transportation costs, and the agency’s authority to conduct the procurement.
Appendix VI

Examples of U.S. Court of Federal Claims Bid Protest Cases Filed Between January 1, 1997,

and August 1, 1999

Page 44 GAO/GGD/OGC-00-72 Bid Protests

Bell/BCI, the apparent low bidder, listed at least five prior similar projects.

However, the prices for those projects were not within 10 percent of its

proposed price for the Quantico work.

Tompkins filed suit in COFC challenging any award to Bell/BCI on the

basis that Bell/BCI failed to meet the solicitation’s definitive responsibility

criteria.

In a May 12, 1999, published decision (reissuance of an unpublished order

entered on March 29, 1999), the court found that the cited provision

constituted definitive responsibility criteria. The court also found that

since the agency did not intend for the provision to do so, the provision

was overly restrictive of competition, providing a compelling reason to

cancel the solicitation. The court granted, in part, Tompkins’ motion for

summary judgment.

ATA Defense Industries, Inc. v. United States (No. 97-382C)

This postaward bid protest case, filed by ATA Defense Industries, Inc.,

challenged the Army’s placement of an order for a target range upgrade

with a General Services Administration (GSA) Federal Supply Schedule

(FSS) contractor even though 35 percent of the system and services sought

were not listed on FSS.

The Army wanted to upgrade two target ranges at Fort Stewart, GA. The

upgrade was valued at $673,376. Caswell International, a supplier of target

systems, had listed some of its equipment on its FSS contract. The Army

found that about 65 percent of the products and services required for the

upgrade could be acquired under Caswell’s FSS contract; the remaining 35

percent could not.

The contracting officer placed an order with Caswell for the entire

upgrade, including the 35 percent of products and services not available on

FSS. ATA Defense, a competitor of Caswell, filed a protest of the purchase

order. ATA Defense alleged that the Army circumvented the Competition

in Contracting Act’s requirement for full and open competition in placing

the full order with Caswell.

Before placing the order, the contracting officer issued a justification and

approval document stating that award should be made to Caswell because

it was the only reliable source for the remaining 35 percent of the upgrade

products. After the protest was filed at COFC, the contracting officer

issued a second justification and approval document based on a

Small Business Cases
Appendix VI

Examples of U.S. Court of Federal Claims Bid Protest Cases Filed Between January 1, 1997,

and August 1, 1999

Page 45 GAO/GGD/OGC-00-72 Bid Protests

determination that unusual and compelling urgency warranted exempting

35 percent of the upgrade products and services from competition.

In a June 27, 1997, published decision, COFC determined that the agency’s

justifications for the sole-source award of the 35 percent of products and

services not listed on FSS were insufficient. The first justification was

found to be inadequate because other sources were available. The second

justification was made after the award and was considered to be untimely.

The court also rejected the Army’s argument that the award of the

additional non-FSS items should be allowed as incidental to the FSS items

ordered. The court granted ATA’s motion for a permanent injunction and

ordered the Army to suspend performance under, and take necessary steps

to terminate, the purchase order.

CRC Marine Services, Inc. v. United States (No. 98-128C)

This postaward bid protest case, filed by CRC Marine Services Inc.,

challenged the rejection of its lowest priced bids under three Army Military

Traffic Management Command transportation solicitations. CRC

maintained that it was the subject of an unlawful de facto debarment by

the Army based on CRC’s prior suspension and disbarment and bad faith

on the part of the agency. CRC also protested that one of the awardee’s

bids was nonresponsive and that the awardee’s performance did not

comply with the requirements.

In a May 27, 1998, published decision, the court found that the rejections

were reasonably based and there was no merit to (1) plaintiff’s claim that it

was de facto debarred from performance of the requirements or (2) the

plaintiff’s challenges to the award. The court rejected CRC’s claims, denied

its motion for a permanent injunction, and dismissed the complaint.

Modern Technologies Corporation v. United States (No. 98-309C)

This postaward bid protest, filed by Modern Technologies Corporation,

challenged the Air Force’s award of a series of task order contracts for

technical services. The plaintiff protested the agency’s evaluation of the

technical and cost proposals.

The court denied plaintiff’s request for declaratory and injunctive relief;

entered judgment for defendant; and, in a July 2, 1998, unpublished

decision filed under seal, dismissed Modern Technologies’ complaint.
Appendix VI

Examples of U.S. Court of Federal Claims Bid Protest Cases Filed Between January 1, 1997,

and August 1, 1999

Page 46 GAO/GGD/OGC-00-72 Bid Protests

In a December 21, 1998, order, the court reconsidered the terms of a

protective order issued in the case and ordered the release of previously

protected information it considered to have only minimal current value.

Adirondack Construction Corporation v. United States (No. 98-698)

This preaward bid protest case, filed by Adirondack Construction

Corporation, concerned the U.S. Army Corps of Engineers’ issuance of an

invitation for bid to renovate a federal building in Rome, NY. Adirondack’s

representative submitted the firm’s bid late. Adirondack contended that

actions by the Corps were the main cause for the late receipt of

Adirondack’s bid.

In an October 30, 1998, order, the court granted judgment for plaintiff and

ordered that Adirondack’s bid be treated as received on time. The contract

was subsequently awarded to the plaintiff. The court dismissed the action

as moot on December 22, 1998.

American Renovation & Construction Co. v. United States (No. 99-171C)

This preaward bid protest case filed by the American Renovation &

Construction Company challenged the Air Force’s rejection of its bid to

improve military family housing units as late. American Renovation

contended that because its bid was in the possession of the U.S. Postal

Service in time for timely delivery, the Air Force’s rejection of the bid was

improper and contrary to law.

On April 1, 1999, American Renovation & Construction Company moved

for voluntarily dismissal of the case. The court dismissed the complaint on

the same day.
Appendix VII

Comments From the General Counsel,

Department of Defense

Page 47 GAO/GGD/OGC-00-72 Bid Protests
Appendix VII

Comments From the General Counsel, Department of Defense

Page 48 GAO/GGD/OGC-00-72 Bid Protests
Appendix VII

Comments From the General Counsel, Department of Defense

Page 49 GAO/GGD/OGC-00-72 Bid Protests
Appendix VII

Comments From the General Counsel, Department of Defense

Page 50 GAO/GGD/OGC-00-72 Bid Protests
Appendix VIII

Comments from the American Bar

Association, Section of Public Contract Law

Page 51 GAO/GGD/OGC-00-72 Bid Protests
Appendix VIII

Comments from the American Bar Association, Section of Public Contract Law

Page 52 GAO/GGD/OGC-00-72 Bid Protests
Appendix VIII

Comments from the American Bar Association, Section of Public Contract Law

Page 53 GAO/GGD/OGC-00-72 Bid Protests
Appendix VIII

Comments from the American Bar Association, Section of Public Contract Law

Page 54 GAO/GGD/OGC-00-72 Bid Protests
Appendix VIII

Comments from the American Bar Association, Section of Public Contract Law

Page 55 GAO/GGD/OGC-00-72 Bid Protests
Appendix VIII

Comments from the American Bar Association, Section of Public Contract Law

Page 56 GAO/GGD/OGC-00-72 Bid Protests
Appendix VIII

Comments from the American Bar Association, Section of Public Contract Law

Page 57 GAO/GGD/OGC-00-72 Bid Protests
Appendix VIII

Comments from the American Bar Association, Section of Public Contract Law

Page 58 GAO/GGD/OGC-00-72 Bid Protests
Appendix VIII

Comments from the American Bar Association, Section of Public Contract Law

Page 59 GAO/GGD/OGC-00-72 Bid Protests
Appendix VIII

Comments from the American Bar Association, Section of Public Contract Law

Page 60 GAO/GGD/OGC-00-72 Bid Protests
Appendix VIII

Comments from the American Bar Association, Section of Public Contract Law

Page 61 GAO/GGD/OGC-00-72 Bid Protests
Appendix VIII

Comments from the American Bar Association, Section of Public Contract Law

Page 62 GAO/GGD/OGC-00-72 Bid Protests
Appendix VIII

Comments from the American Bar Association, Section of Public Contract Law

Page 63 GAO/GGD/OGC-00-72 Bid Protests
Appendix VIII

Comments from the American Bar Association, Section of Public Contract Law

Page 64 GAO/GGD/OGC-00-72 Bid Protests
Appendix VIII

Comments from the American Bar Association, Section of Public Contract Law

Page 65 GAO/GGD/OGC-00-72 Bid Protests
Appendix VIII

Comments from the American Bar Association, Section of Public Contract Law

Page 66 GAO/GGD/OGC-00-72 Bid Protests
Appendix VIII

Comments from the American Bar Association, Section of Public Contract Law

Page 67 GAO/GGD/OGC-00-72 Bid Protests
Appendix VIII

Comments from the American Bar Association, Section of Public Contract Law

Page 68 GAO/GGD/OGC-00-72 Bid Protests
Appendix VIII

Comments from the American Bar Association, Section of Public Contract Law

Page 69 GAO/GGD/OGC-00-72 Bid Protests
Appendix VIII

Comments from the American Bar Association, Section of Public Contract Law

Page 70 GAO/GGD/OGC-00-72 Bid Protests
Appendix VIII

Comments from the American Bar Association, Section of Public Contract Law

Page 71 GAO/GGD/OGC-00-72 Bid Protests
Appendix VIII

Comments from the American Bar Association, Section of Public Contract Law

Page 72 GAO/GGD/OGC-00-72 Bid Protests
Appendix VIII

Comments from the American Bar Association, Section of Public Contract Law

Page 73 GAO/GGD/OGC-00-72 Bid Protests
Appendix VIII

Comments from the American Bar Association, Section of Public Contract Law

Page 74 GAO/GGD/OGC-00-72 Bid Protests
Appendix VIII

Comments from the American Bar Association, Section of Public Contract Law

Page 75 GAO/GGD/OGC-00-72 Bid Protests
Appendix VIII

Comments from the American Bar Association, Section of Public Contract Law

Page 76 GAO/GGD/OGC-00-72 Bid Protests
Appendix VIII

Comments from the American Bar Association, Section of Public Contract Law

Page 77 GAO/GGD/OGC-00-72 Bid Protests
Appendix VIII

Comments from the American Bar Association, Section of Public Contract Law

Page 78 GAO/GGD/OGC-00-72 Bid Protests
Appendix VIII

Comments from the American Bar Association, Section of Public Contract Law

Page 79 GAO/GGD/OGC-00-72 Bid Protests
Appendix VIII

Comments from the American Bar Association, Section of Public Contract Law

Page 80 GAO/GGD/OGC-00-72 Bid Protests
Appendix VIII

Comments from the American Bar Association, Section of Public Contract Law

Page 81 GAO/GGD/OGC-00-72 Bid Protests
Appendix VIII

Comments from the American Bar Association, Section of Public Contract Law

Page 82 GAO/GGD/OGC-00-72 Bid Protests
Appendix VIII

Comments from the American Bar Association, Section of Public Contract Law

Page 83 GAO/GGD/OGC-00-72 Bid Protests
Appendix IX

Comments From the Federal Bar Association,

Government Contracts Section

Page 84 GAO/GGD/OGC-00-72 Bid Protests
Appendix IX

Comments From the Federal Bar Association, Government Contracts Section

Page 85 GAO/GGD/OGC-00-72 Bid Protests
Appendix IX

Comments From the Federal Bar Association, Government Contracts Section

Page 86 GAO/GGD/OGC-00-72 Bid Protests
Appendix IX

Comments From the Federal Bar Association, Government Contracts Section

Page 87 GAO/GGD/OGC-00-72 Bid Protests
Appendix IX

Comments From the Federal Bar Association, Government Contracts Section

Page 88 GAO/GGD/OGC-00-72 Bid Protests
Appendix IX

Comments From the Federal Bar Association, Government Contracts Section

Page 89 GAO/GGD/OGC-00-72 Bid Protests
Appendix IX

Comments From the Federal Bar Association, Government Contracts Section

Page 90 GAO/GGD/OGC-00-72 Bid Protests
Appendix IX

Comments From the Federal Bar Association, Government Contracts Section

Page 91 GAO/GGD/OGC-00-72 Bid Protests
Appendix IX

Comments From the Federal Bar Association, Government Contracts Section

Page 92 GAO/GGD/OGC-00-72 Bid Protests
Appendix IX

Comments From the Federal Bar Association, Government Contracts Section

Page 93 GAO/GGD/OGC-00-72 Bid Protests
Appendix IX

Comments From the Federal Bar Association, Government Contracts Section

Page 94 GAO/GGD/OGC-00-72 Bid Protests
Appendix IX

Comments From the Federal Bar Association, Government Contracts Section

Page 95 GAO/GGD/OGC-00-72 Bid Protests
Appendix X

GAO Contacts and Staff Acknowledgments

Page 96 GAO/GGD/OGC-00-72 Bid Protests

Richard Stana or William Jenkins, (202) 512-8777

In addition to those named above, R. Rochelle Burns, Richard Griswold,

James Russell, and Jan Montgomery made key contributions to this report.

GAO Contacts

Acknowledgments
Page 97 GAO/GGD/OGC-00-72 Bid Protests
Page 98 GAO/GGD/OGC-00-72 Bid Protests
Page 99 GAO/GGD/OGC-00-72 Bid Protests
Ordering Copies of GAO Reports

The first copy of each GAO report and testimony is free.

Additional copies are $2 each. Orders should be sent to the

following address, accompanied by a check or money order made

out to the Superintendent of Documents, when necessary. VISA

and MasterCard credit cards are accepted, also. Orders for 100 or

more copies to be mailed to a single address are discounted 25

percent.

Order by mail:

U.S. General Accounting Office

P.O. Box 37050

Washington, DC 20013

or visit:

Room 1100

700 4th St. NW (corner of 4th and G Sts. NW)

U.S. General Accounting Office

Washington, DC

Orders may also be placed by calling (202) 512-6000 or by using

fax number (202) 512-6061, or TDD (202) 512-2537.

Each day, GAO issues a list of newly available reports and

testimony. To receive facsimile copies of the daily list or any list

from the past 30 days, please call (202) 512-6000 using a touchtone phone. A recorded menu will provide information on how to

obtain these lists.

Viewing GAO Reports on the Internet

For information on how to access GAO reports on the INTERNET,

send e-mail message with “info” in the body to:

info@www.gao.gov

or visit GAO’s World Wide Web Home Page at:

http://www.gao.gov

Reporting Fraud, Waste, and Abuse in Federal Programs

To contact GAO FraudNET use:

Web site: http://www.gao.gov/fraudnet/fraudnet.htm

E-Mail: fraudnet@gao.gov

Telephone: 1-800-424-5454 (automated answering system)

United States

General Accounting Office

Washington, D.C. 20548-0001

Official Business

Penalty for Private Use $300

Address Correction Requested

Bulk Rate

Postage & Fees Paid

GAO

Permit No. G100

(188647)