The United States Court of Federal Claims has jurisdiction to hear bid protest cases under the Tucker Act, 28 U.S.C. Section 1491(b).  The Tucker Act, as amended by the Administrative Dispute Resolution Act of 1996, Pub.L. No. 104-320 Section 12(a)-(b), waives sovereign immunity for claims against the United States and provides that the US Court of Federal Claims may hear actions 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.”

This bid protest jurisdiction of the Court includes reviews of agency corrective action taken in response to GAO protests.  The Court will review the action to determine whether it is reasonable under the circumstances.

Injunctive relief may be available in a bid protest case before the United States Court of Federal Claims, if:

  • the plaintiff has succeeded on the merits of the case;
  • the plaintiff will suffer irreparable harm if the court withholds injunctive relief,
  • the balance of the hardships favors granting injunctive relief, and
  • such relief would be in the public interest.   

See Great Lakes Dredge & Dock Co v United States, 60 Fed. Cl. 350 (2004) for a discussion of injunctive relief.

The standard of review the Court utilizes in reviewing agency action is whether it is “arbitrary, capricious, an abuse of discretion, or otherwise not in accordance with law.”  5 U.S.C. Section 706(2)(A)  This is known as the Administrative Procedures Act (APA) standard.  This is a very high bar for the plaintiff challenging agency action.  The Court can look to see whether the agency action lacked a rational basis or if the agency’s decision-making involved a violation of regulation or procedure.  Agency decisions are given the benefit of the doubt and a presumption of regularity.  The Court will not simply substitute its judgment for a reasonable agency decision, even if the Court would have reached a different decision.

If the Court finds that an agency acted without a rational basis, then it must decide whether the plaintiff/protestor was prejudiced by the agency’s conduct.  For pre-award bid protests, the Court would look to see whether there is a competitive injury.  For a post-award bid protest, the protester must prove there is a substantial chance it would have received the award absent the violation.

Contact government contract lawyer Karen S. Hindson to discuss your questions about bid protests.