There are a variety of venues in which a disappointed federal government contractor can protest a contract award. Bid protests do not always need to be brought before the GAO—they may also be adjudicated by the Court of Federal Claims and, in the case of non-procurement contracts, in U.S. District Courts. Moreover, a protestor unhappy with the outcome in one venue (e.g., the GAO) may re-assert its claim before the Court of Federal Claims. However, sometimes even the Court of Federal Claims is unable to afford the relief desired. For instance, the Court of Federal Claims is unable to grant equitable or declaratory relief in claims concerning non-procurement contracts (e.g., concession contracts). In such cases, it may make sense to file a bid protest claim in one of the federal district courts.
The efficacy of this approach was highlighted in Eco Tour Adventures, Inc. v. Jewell, 174 F. Supp. 319 (D.D.C. 2016), a bid-protest case brought before the U.S. District Court for the District of Columbia, in which a disappointed offeror initially filed a bid protest in the Court of Federal Claims and, after partial success, filed a second action in the federal district court. The offeror, Eco Tour Adventures, was bidding on a concession contract to provide ski touring services in Grand Teton National Park. After award of the contract to the incumbent concessionaires, Eco Tour filed a protest in the Court of Federal Claims arguing that the incumbents’ failure to include financial information required by the solicitation rendered their proposals unresponsive. The Court of Federal Claims agreed that the agency did not fairly consider Eco Tour’s bids, but explained that it lacked jurisdiction to award the injunctive and declaratory relief sought. Although the Court of Federal Claims awarded Eco Tours its bid preparation costs because of the unfairness of the agency’s actions, it could not compel the agency to re-evaluate the proposals. Consequently, the agency proceeded with its award of the contract despite the finding that it breached its duty to fairly and honestly consider Eco Tour’s bids.
Six months later, Eco Tour again commenced court proceedings, this time in federal district court, seeking an order declaring that the contract awards were illegal and void. More importantly, Eco Tour asked the federal district court for an injunction requiring the agency to award the contracts to Eco Tours. The agency, of course, disagreed with what it deemed to be a second bite at the apple. The agency argued that the matter was closed once Eco Tour was awarded its bid preparation costs by the Court of Federal Claims and that it could not bring a separate action seeking the relief that the Court of Federal Claims lacked the power to grant.
The district court disagreed. It explained that Eco Tour’s recovery of its bid preparation costs in the Court of Federal Claims only reflected a portion of the potential costs Eco Tour incurred in submitting its bid for the contested contracts. Moreover, while the district court recognized that courts are loathe to make contracts for the parties, putting the disappointed bidder in the position it would have occupied but for the error is normally the best approach to resolving the dispute. According to the court, the facts suggested that but for the agency’s improper actions, Eco Tour would have been awarded the contracts.
These are very unique circumstances, but they highlight the need for thoughtful strategy. There are several different fora in which a disappointed government contractor can seek relief, and each has its own unique benefits and limitations. Understanding each forum’s limitations, and having a proper strategy for utilizing the most advantageous forum, can mean the difference between winning and losing a bid protest.