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APPENDIX C

PROCEDURE IN PROCUREMENT PROTEST CASES

PURSUANT TO 28 U.S.C. § 1491(b)

I. INTRODUCTION

1. This Appendix describes standard

practices in protest cases filed pursuant to 28 

U.S.C. § 1491(b) and supplements the Rules of 

the United States Court of Federal Claims, which 

are otherwise fully applicable to these cases.

II. REQUIREMENT FOR

PRE-FILING NOTIFICATION

2. To expedite proceedings, plaintiff’s

counsel must (except in exceptional 

circumstances to be described in moving papers) 

provide advance notice of filing a protest case to:

(a) the Department of Justice,

Commercial Litigation Branch, Civil 

Division;

(b) the clerk, United States Court of

Federal Claims;

(c) the procuring agency’s contracting

officer; and 

(d) the apparently successful 

bidder/offeror (in cases where there has been 

an award and plaintiff has received notice of 

the identity of the awardee).

Such notice must be provided at least 1 day—but 

no earlier than 5 days—in advance of filing a 

protest case, not including Saturdays, Sundays, 

and legal holidays as defined in RCFC 6(a)(6). 

(The contacts for the clerk and the Department of 

Justice are posted on the court’s website—

www.uscfc.uscourts.gov.) The pre-filing notice is 

intended to permit the Department of Justice to 

assign an attorney to the case who can address 

relevant issues on a timely basis and to permit the 

court to ensure the availability of appropriate 

court resources. Failure to provide timely prefiling notification will impede both the clerk’s 

ability to notify the judges of an incoming protest 

case and the assigned judge’s ability to initiate 

proceedings in the case, including the scheduling 

of the initial status conference. See paragraph 8, 

below. Plaintiff’s counsel must provide an 

updated notice to the above entities highlighting

any material change in respect to the timing of or 

the intent to file a protest. If, after filing a prefiling notice, plaintiff’s counsel determines that 

the protest case will not be filed, counsel must 

notify the above entities that the notice is 

withdrawn.

3. The pre-filing notice must include:

(a) a statement consistent with the

disclosure requirements called for in RCFC 

7.1(a); and

(b) the following additional information:

(1) the name of the procuring

agency and the number of the solicitation 

in the contested procurement; 

(2) the name and telephone number

of the contracting officer responsible for 

the procurement;

(3) the name and telephone number

of the principal agency attorney, if 

known, who represented the agency in 

any prior protest of the same 

procurement;

(4) whether plaintiff contemplates

requesting temporary or preliminary 

injunctive relief pursuant to RCFC 65; 

(5) whether plaintiff has discussed

the need for temporary or preliminary 

injunctive relief with Department of 

Justice counsel and the response, if any;

(6) whether the action was preceded

by the filing of a protest before the 

Government Accountability Office 

(GAO) and if so, the “B-” number of the 

protest and whether a decision was 

issued; and

(7) whether plaintiff contemplates

the need for the court to enter a protective 

order. 

III. FILING UNDER SEAL

4. In the event plaintiff believes its

complaint, or any related material filed at the 

same time, contains confidential or proprietary 

information and plaintiff seeks to protect that 

information from public scrutiny, plaintiff must 

file a motion together with the complaint for 

leave to file the complaint under seal. When a 

complaint or any related material is filed with an 

accompanying motion for leave to file under seal, 

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the complaint or related material will be treated 

as though filed under seal while the motion is 

pending. 

5. When filing documents under seal, a

party must follow the procedures described in 

RCFC 5.5(d). 

6. A complaint or any related material filed

together with the complaint that is to be filed 

under seal must be:

(a) marked or highlighted in such a way

that confidential or proprietary information is 

indicated; and 

(b) accompanied by a proposed redacted

version of the pleading (i.e., a version that 

omits confidential or proprietary 

information). The proposed redacted version 

will be made available to the public 

subsequent to the completion of the 

procedures specified in paragraph 12 of the 

sample protective order found at Appendix of 

Forms, Form 8. Failure to file a proposed 

redacted version may result in denial of the 

motion for leave to file under seal. 

7. To the extent the complaint or any related 

material filed together with the complaint 

contains classified information, the filing must 

conform to the requirements of the classifying 

agency. 

IV. INITIAL STATUS CONFERENCE

8. The court will schedule an initial status

conference with the parties to address relevant 

issues including, but not limited to, the following:

(a) identification of interested parties;

(b) admission of any successful offeror

as an intervenor;

(c) any request for temporary or

preliminary injunctive relief (see paragraph 

15, below); 

(d) the content of a protective order, if

requested by one or more of the parties, and 

the requirement for redacted copies;

(e) the content of and time for filing the

administrative record; 

(f) whether it may be appropriate to

supplement the administrative record; and 

(g) the nature of and schedule for further

proceedings. 

This initial status conference will be held as soon 

as practicable after the filing of the complaint. 

V. INJUNCTIVE RELIEF

9. The court’s practice is to expedite protest

cases to the extent practicable and to conduct 

hearings on motions for preliminary injunctions 

at the earliest practicable time. Accordingly,

when a plaintiff seeks a preliminary injunction, it 

may not need to request a temporary restraining 

order. 

10. An application for a temporary

restraining order and/or preliminary injunction 

must be filed together with the complaint with the 

clerk, unless the complaint has been previously 

filed. The application must be accompanied by 

affidavits, supporting memoranda, and any other 

documents upon which plaintiff intends to rely. 

The application also must be accompanied by a 

statement that plaintiff’s counsel has provided, by 

hand delivery, overnight mail, or electronic 

means, copies of the foregoing documents to the 

Department of Justice, Commercial Litigation 

Branch, 8th Floor, 1100 L St. NW, Washington, 

DC 20530. 

11. If the name of the apparently successful

bidder/offeror is known (in cases where there has 

been an award and plaintiff has received notice of 

the identity of the awardee), plaintiff must state 

in the application that copies of the foregoing 

documents have been provided, by hand delivery, 

overnight mail, or electronic means, to the 

apparently successful bidder/offeror. If the name 

of the awardee is unknown, plaintiff must so 

state.

12. The apparently successful bidder/offeror

may enter a notice of appearance at any hearing 

on the application for a temporary restraining 

order/preliminary injunction if it advises the court 

of its intention to move to intervene pursuant to 

RCFC 24(a)(2) or has moved to intervene before 

the hearing. 

13. The clerk will promptly inform the

parties of the judge to whom the case has been 

assigned and the time and place of any hearing.

14. Except in an emergency, the court will

not consider ex parte applications for a temporary 

restraining order.

15. In cases in which plaintiff seeks

temporary or preliminary injunctive relief, 

counsel must be prepared to discuss the following 

matters at the initial status conference:

(a) whether and to what extent, absent

temporary or preliminary injunctive relief, 

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the court’s ability to afford effective final 

relief is likely to be prejudiced; 

(b) whether plaintiff has discussed any

request it has made for a temporary 

restraining order in advance with Department 

of Justice counsel and, if so, defendant’s 

response;

(c) whether the government will agree to

withhold award or suspend performance 

pending a hearing on the motion for 

preliminary injunction;

(d) whether the government will agree to

withhold award or suspend performance 

pending a final decision on the merits;

(e) an appropriate schedule for

completion of the briefing on any motion for 

a preliminary injunction; 

(f) the security requirements of RCFC

65(c) (See Appendix of Forms, Forms 11–

13); and

(g) whether the hearing on the

preliminary injunction should be 

consolidated with a final hearing on the 

merits.

VI. PROTECTIVE ORDERS

16. Preliminary Matters.

(a) The principal vehicle relied upon by

the court to ensure protection of sensitive 

information is the protective order. The 

protective order defines the procedures to be 

followed to identify protected information, to 

prepare redacted versions of such 

information, and to dispose of protected 

information at the conclusion of the case.

(b) Information a party identifies as

protected may be disclosed only to the court 

and to individuals who have been admitted to 

the protective order.

(c) Once a protective order is issued by

the court, individuals who seek access to 

protected information must file an 

appropriate application. If admitted to the 

protective order, an individual becomes 

subject to the terms of the order. It is the 

responsibility of those admitted to the 

protective order to take the necessary steps to 

ensure that the information is protected, 

consistent with the terms of the protective 

order, while it is under their control 

(including oversight of support personnel 

who may have access to protected 

information).

(d) Court, procuring agency, and

Department of Justice personnel are 

automatically admitted to protective orders 

when issued and are subject to their terms. 

17. Issuance of a Protective Order.

(a) A motion for a protective order must

meet the requirements of paragraph 10 above. 

The court may issue a protective order at its 

discretion.

(b) A sample protective order is found at

Appendix of Forms, Form 8. The parties are 

cautioned that individual judges and the 

parties themselves may want to amend the 

sample protective order to meet the needs of 

a specific case or their individual preferences. 

The specific protective order issued in a case 

governs the treatment of protected 

information in that case.

18. Application for Admission to the

Protective Order.

(a) Each party seeking access to

protected information on behalf of an 

individual must file with the court an 

appropriate “Application for Access to 

Information Under Protective Order” (see

Appendix of Forms, Forms 9 and 10). The 

application may also be amended by the court 

in response to individual case needs.

(b) Objections to an application for

access must be filed with the court within 2 

business days after a party’s receipt of the 

application. 

(c) In considering objections to an

application for access, the court will consider 

such factors as the nature and sensitivity of 

the information at issue, the party’s need for 

access to the information in order to 

effectively represent its position, the overall 

number of applications received, and any 

other concerns that may affect the risk of 

inadvertent disclosure.

(d) If the court receives objections to an

application, access will only be granted by 

court order. 

19. Designation of Protected Information

and Preparation of Redacted Pleadings.

After a protective order is entered, the 

designation of protected information and the 

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preparation and filing of redacted documents will 

be governed by the terms of the protective order. 

20. Disposition of Material Containing

Protected Information.

The specific procedures to be followed in 

disposing of protected information at the 

conclusion of the case will be as described in the 

protective order. 

VII. THE CONTENT AND FILING OF

THE ADMINISTRATIVE RECORD

21. The United States will be required to

identify and provide (or make available for 

inspection) the administrative record in a protest 

case by the date(s) established at the initial status 

conference. The filing of all or a part of the 

administrative record must be accompanied by a 

Notice of Filing. 

22. Early production of relevant core

documents may expedite final resolution of the 

case. The core documents relevant to a protest 

case may include, as appropriate,

(a) the agency’s procurement request,

purchase request, or statement of 

requirements;

(b) the agency’s source selection plan;

(c) the bid abstract or prospectus of bid;

(d) the Commerce Business Daily or

other public announcement of the 

procurement;

(e) the solicitation, including any

instructions to offerors, evaluation factors, 

solicitation amendments, and requests for 

best and final offers;

(f) documents and information provided

to bidders during any pre-bid or pre-proposal 

conference;

(g) the agency’s responses to any

questions about or requests for clarification 

of the solicitation;

(h) the agency’s estimates of the cost of

performance;

(i) correspondence between the agency

and the protester, awardee, or other interested 

parties relating to the procurement;

(j) records of any discussions, meetings,

or telephone conferences between the agency 

and the protester, awardee, or other interested 

parties relating to the procurement;

(k) records of the results of any bid

opening or oral motion auction in which the 

protester, awardee, or other interested parties 

participated;

(l) the protester’s, awardee’s, or other

interested parties’ offers, proposals, or other 

responses to the solicitation;

(m)the agency’s competitive range

determination, including supporting 

documentation; 

(n) the agency’s evaluations of the

protester’s, awardee’s, or other interested 

parties’ offers, proposals, or other responses 

to the solicitation, including supporting 

documentation; 

(o) the agency’s source selection

decision, including supporting 

documentation; 

(p) pre-award audits, if any, or surveys

of the offerors; 

(q) notification of contract award and the

executed contract;

(r) documents relating to any pre- or

post-award debriefing; 

(s) documents relating to any stay,

suspension, or termination of award or 

performance pending resolution of the bid 

protest;

(t) justifications, approvals,

determinations, and findings, if any, prepared 

for the procurement by the agency pursuant 

to statute or regulation; and 

(u) the record of any previous

administrative or judicial proceedings 

relating to the procurement, including the 

record of any other protest of the 

procurement.

23. Because a protest case cannot be

efficiently processed until production of the 

administrative record, the court expects the 

United States to produce the core documents and 

the remainder of the administrative record as 

promptly as circumstances will permit. (See

RCFC 5.5(d) which is applicable to 

administrative records, unless waived by the 

court.) Materials that otherwise qualify as part of 

the administrative record may not be excluded 

from the record merely because they are available 

in electronic form only.

24. Any additional documents within the

administrative record must be produced at such 

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time as may be agreed to by the parties or ordered 

by the court.

VIII. ADMISSION OF COUNSEL

25. In procurement protest cases in which

plaintiff’s counsel is not a member of the bar of 

the court and does not have sufficient time to gain 

admission prior to the filing of the action, the 

clerk will accept for filing any proper complaint 

and accompanying pleadings under 28 U.S.C. § 

1491(b) from such counsel, conditioned upon 

counsel’s prompt pursuit of admission to practice 

before the United States Court of Federal Claims 

pursuant to RCFC 83.1. Failure to pursue such 

admission within 30 days after the initiation of 

the action may result in dismissal of the action 

and possible referral for disciplinary action.

Rules Committee Notes

2002 Revision

This appendix sets forth the procedures 

applicable to the court’s procurement protest 

jurisdiction. In the main, these procedures reflect 

those that formerly appeared as General Order 

No. 38, issued on May 7, 1998. In addition, 

however, Appendix C now incorporates—in 

paragraphs 10 through 14—those provisions of 

former RCFC 65(f) (titled “Procedures”) which 

enumerated requirements particular to 

applications for temporary restraining orders 

and/or motions for preliminary injunction.

Papers and exhibits are often filed under seal 

in procurement protests. Procedures for unsealing 

are addressed at RCFC 77.3(d). The standards for 

granting access to protected information are 

addressed in decisions such as U.S. Steel Corp. v. 

United States, 730 F.2d 1465 (Fed. Cir. 1984), 

and Matsushita Elec. Indus. Co. v. United States, 

929 F.2d 1577 (Fed. Cir. 1991). 

2005 Amendment 

Paragraphs 16(a) and 20 of this appendix 

address the disposition of material containing 

protected information after a case has been 

concluded. Both paragraphs contemplate that a 

protective order entered in a case involving 

protected information will set out the obligations 

of the parties in this regard. Form 8 in the 

Appendix of Forms, the sample protective order 

suggested for use in procurement protest cases, 

has been modified to include a new paragraph 8 

which concerns the court’s retention and 

disposition of protected materials filed by the 

parties. The new paragraph provides that the 

original version of the administrative record and 

any other materials filed under seal in such a case 

will be retained by the court pursuant to RCFC 

77.3(d). Copies of such materials filed with the 

court in addition to the original version may be 

returned by the court to the parties for appropriate 

disposition. In a particular case, the parties may 

propose to the court that other provisions be

substituted for this portion of the model 

protective order. 

2007 Amendment 

Paragraph 18(a) has been reworded and 

paragraph 18(b) has been deleted as unnecessary. 

In addition, paragraph 18(e) has been amended to 

clarify that issuance of a court order granting 

access to protected information is required only 

in those cases where objections to the application 

have been raised. This clarification confirms the 

practice spelled out in the court’s sample 

protective order (Appendix of Forms, Form 8). 

Finally, minor changes (primarily grammatical) 

have been introduced throughout the Appendix.

2011 Amendment 

The information that is to be provided as part 

of the pre-filing notice required under paragraph 

3 has been expanded to include the disclosure 

statement regarding corporate relationships that 

must be filed pursuant to RCFC 7.1. 

2016 Amendment 

Paragraph 2 has been amended to specify that 

the pre-filing notice must be provided to the listed 

entities during clerk’s office business hours as 

defined in RCFC 77.1. 

Paragraph 6 has been amended to clarify that 

a proposed redacted version of a pleading is 

subject to the redaction procedures specified in 

Form 8 (“Protective Order”) in the Appendix of 

Forms.

2018 Amendment 

In the interest of internal consistency, 

Paragraph 18 has been amended to clarify that 

objections must be filed with the court within 2 

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business days after a party’s receipt of an 

application for access.

2019 Amendment 

Paragraph 2 has been amended to eliminate 

the references to facsimile transmission.

2021 Amendment 

Paragraph 2 has been amended to clarify that 

the 1-day advance notice requirement does not 

include weekend and holiday hours and that 

notice must be provided no earlier than 5 days in 

advance of filing a protest case. In addition, a 

requirement has been added for counsel to 

provide further notice if it is determined that the

protest case will not be filed.

Appendix C cont.