"Court of Federal Claims"

Subscribe to "Court of Federal Claims" via RSS

The Pros and Cons of Agency-Level Protests

In my previous post, I wrote about the basics of an agency-level protest. In this post, I will explore some of the main advantages and disadvantages of filing an agency-level protest.

So, what are the benefits of filing an agency-level protest? First, they do tend to be quicker and less expensive than GAO or COFC protests, and they allow protestors a second opportunity to pursue their protest at GAO or COFC. In other words, an agency-level protest may let a protestor test the waters before all-out committing to the cost associated with a GAO or COFC protest.

The Nuts and Bolts

As most federal contractors are aware, unlike commercial contracts, federal contractors may challenge solicitation defects or contract award decisions made by the government through the bid protest process. Although protests at GAO and the Court of Federal Claims receive most of the attention due to the fact that their decisions are ultimately made public (at least in part), another forum also exists for disappointed offerors: protests made directly to the agency. This post is part one of a two-part series. This post will provide the basic nuts and bolts of the agency-level protest, and part two will provide the pros and cons of this specific approach.

The Contract Disputes Act imposes a six-year statute of limitations on all claims, whether they are asserted by the contractor or by the Government. See 41 U.S.C. § 7103(a)(4)(A). The limitations period begins to run upon accrual of a claim, which is “the date when all events . . . that fix the alleged liability of either the Government or the contractor and permit assertion of the claim . . . were known or should have been known.” FAR 33.201. Because six years must pass before the claim expires, the precise date of accrual is often little more than an academic question. Indeed, there have been relatively few cases applying the CDA limitations period to Government claims. But accrual has recently become a real and sometimes insurmountable obstacle to Government claims. Here is a short summary of the basic concepts that have emerged from the decisions that have addressed the issue.

1.         The government has the burden of proving timeliness. 

The CDA limitations period is “jurisdictional.” When the government asserts a claim against a contractor, the government has the burden of proving jurisdiction. To do so, the government must establish that the claim was timely asserted. If the government cannot show that the claim was asserted within six years of accrual, the Board or the Court lacks jurisdiction to hear the claim. Raytheon Missile Systems, ASBCA No. 58011 (Jan. 28, 2013) [pdf].

The Court of Federal Claims has issued an important decision establishing that offerors will be held accountable for making inaccurate representations in proposals. According to the Court’s decision in GTA Containers, Inc. v. United States, No. 11-606C (Fed. Cl. Feb. 22, 2012) [pdf], proof that an offeror made a misrepresentation in its proposal is sufficient to sustain a bait-and-switch protest if the agency relied on the misrepresentation.