Getting an adverse decision from the Contracting Officer can severely impact your company’s future. Was there a legal mistake made? Bring your case to the Court of Federal Claims (COFC) appeals court can make a difference. Whether the situation involves a bid protest, a termination for default, or Contract Disputes Act claims denial or an improper small business decision from SBA OHA, an experienced government procurement lawyer could unveil serious errors made by the agency.
Watson & Associates’ government contract lawyers have years of experience litigating appellate cases before the U.S. Court of Federal Claims.
Watson & Associates government contract law attorneys have aggressively represented contractors in appellate cases at the U.S. Court of Federal Claims Court. The law firm litigates critical federal procurement disputes including bid protests, contract disputes, small business matters, and more.
As a government contractor, it is important to know that The U.S. Court of Federal Claims has subject matter jurisdiction over many federal procurement disputes resulting from the contracting officer’s or agency’s final decision. This includes Court of Federal Claims bid protests, Contract Disputes Act claims, government small business regulations and SBA programs.
As government procurement appellate lawyers, with law offices in Washington, D.C and Colorado, the law firm offers experienced legal counsel, some of who have actually worked for federal agencies.
Careful Review of the Agency Record
Oftentimes, an appeal or bid protest at the Federal Claims Court requires a careful review of the record at the Agency level. The does not overturn all errors at the contracting officer level. There has to be some level of prejudicial error and some mistake that translates to reversible error. The Court of Federal Claims lawyers at Watson & Associates, LLC will carefully evaluate the agency’s decision, documentation and evidence to see if it meets the legal standard for the Court to overturn the lower decision.
Whether you are appealing a small business decision for the SBA Office of Hearings and Appeals (OHA), a pre-award or post-award bid protest, termination for default appeal, or other contract claims against the united states or procurement disputes, our government attorneys have represented both small and large businesses in various government contracting disputes. For clients that are seeking to appeal a decision from the U.S. Court of Federal Claims, our federal appeal lawyers and bid protest attorneys also litigate matters at the U.S. Court of Appeals for the Federal Circuit.
When filing an appeal at the Court of Federal Claims, you must show that the court has subject matter jurisdiction to hear your case. The Court cannot hear the case on the merits before jurisdiction is present. Steel Co. v. Citizens for a Better Env’t, 523 U.S. 83, 88-89 (1998). Any party to the dispute may challenge the Court’s jurisdiction. The Court, may by its own choice (sua sponte) raise the question of whether there is subject matter jurisdiction. See Arbaugh v. Y&H Corp., 126 S. Ct. 1235, 1240 (2006). At Watson & Associates, we help clients to assess the critical issue of the court’s ability to hear the appeal. Common issues that may arise include:
- Whether the contractor fulfilled the statutory requirements (usually Contract Disputes Act) before submitting the dispute to the contracting officer
- Whether the contracting officer made a final decision, or
- Whether the Appellant completed the agency process (exhausted administrative remedies) before petitioning the court.
COFC Bid Protests
The Tucker Act grants the United States Court of Federal Claims, pursuant to the Tucker Act has jurisdiction over bid protests brought 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 USC 1491(b)(1).
For Federal Claims Court bid protest cases, our attorneys make sure that the agency follows the requirements of the Administrative Procedure Act’ under the “arbitrary and capricious” standard. See 28 USC 1491(b)(4). See also Impresa Construzioni Geom. Domenico Garufi v. United States, 238 F.3d 1324, 1332 (Fed. Cir. 2001). In addition to small business matters before the court, we have experienced federal procurement appellate lawyers and COFC bid protest attorneys that have vast experience with the various substantive legal and Federal Acquisition Regulation (FAR) issues involved in litigation.
Advantages of COFC Bid Protests
One of the clear advantages of filing a bid protest at the Court of Federal Claims in that this court does not have the short deadlines as does the GAO. The COFC does not have defined deadlines. However, post-award protests cannot be filed so late that the government’s attorneys. (DOJ) can argue that you have slept on your rights.
When you file a pre-award bid protest at the COFC, you must still file before the closing date for receipt of proposals. See Blue & Gold Fleet, L.P. v. U.S., 492 F.3d 1308, 1315 (Fed. Cir. 2007) (“a party who has the opportunity to object to the terms of a government solicitation containing a patent error and fails to do so prior to the close of the bidding process waives its ability to raise the same objection afterward in a § 1491(b) action in the Court of Federal Claims”.)
Another advantage of COFC bid protests is that even if GAO rules against you, you can still file a new protest at the Court of Federal Claims. The COFC is not per se a GAO protest appeal. Instead, the litigants have the luxury of filing a new protest at the COFC.
- The COFC decision will be binding on the GAO case
- Note that although not a GAO protest appeal, the COFC court will still review the GAO bid protest file.
A third advantage of filing COFC bid protests is that although it is arguably the more expensive process, federal judges who are appointed for life, can also make an impartial ruling. Contractors with millions to lose in a government protest tend to bring their cases before the COFC. See additional tips on filing bid protests at the Court of Federal Claims.
- Procedurally, when litigating at GAO, there is arguably no direct path to the US Court of Appeals for the Federal Circuit.
- When you litigate a bid protest at the COFC, an adverse ruling can give you appeal rights to the Federal Circuit. Many government contractors do not like to close their options.
COFC Government Contract Small Business Dispute Appeals
The SBA and various agencies issue adverse determinations that severely impact small firms. Watson’s government contract small business lawyers litigate various issues on appeal to the U.S. Court of Federal Claims including:
- Improper small size determination decision
- Denial of admission into the various SBA programs
- Improper denial of contractor claims
- Termination for default
Claims & Contract Disputes Act Appeals
Most agency actions during contract performance are covered under the Contract Disputes Act. When the agency issues a contracting officer’s final decision, you have a timeline to file an appeal at the Federal Claims Court.
The appellate lawyers at Watson & Associates, LLC have vast experience with the various types of cases. They include:
- Construction claims
- Differing site conditions
- Failure to follow CDA requirements
- Breach of contract in federal contracts cases
- Contract delays
- Constructive termination cases
What Are Some Available Remedies From the COFC?
Not all cases litigated at the Court of Federal Claims may benefit the company’s bottom line. Whether the case before the court is a bid protest or Contract Disputes Act claim, our government contract attorneys help clients to sift through the pros and cons of litigating at the Court of Federal Claims. Companies should also realize that the court does not retry the case on the merits. Instead, the judge of the court will look at the lower court’s decision, the evidence presented and whether the lower court committed sufficient error to warrant a reverse or remand. What can the court do at the end of the case?
Bid protest cases: When you file a bid protest at COFC, the judge finds a reason to remand the case back to the lower court. This decision may occur if the record before the COFC fails to indicate that a critical piece of evidence of information was not decided by the lower court or some other missing piece of the record. The court can also make certain recommendations or simply sustain ( agree with the agency) reverse the lower court’s decision (agree with the protestor).
Contract disputes and agency appeals: Here, the is usually an appeal of the contracting officer’s decision. With a proper showing in the record, the court could find that there was an arbitrary and capricious decision and therefore reverse the agency decision. As in other cases, the court can remand the case back to the agency to fill in gaps missing from the record. These types of cases can also include termination for default, claims against the contractor or some other adverse agency decision.
SBA OHA decisions: When small businesses receive an adverse decision regarding the government small business program, the Court of Federal Claims can also remand, sustain or reverse the lower court’s decision. Cases can include adverse small business size standards and size protest decisions.
INTERNATIONAL CLIENTS AND NATIONWIDE HELP FOR FEDERAL CONTRACTORS
Get immediate help and aggressive legal representation: To increase your chances of winning appellate litigation and appeals with Federal Court of Claims appeals decisions call our Washington DC Bid Protest Lawyers at 1-866-601-5518. FREE INITIAL CONSULTATION.