Bid Protests: Characteristics of Cases Filed in Federal Courts (Letter
Report, 04/17/2000, GAO/GGD/OGC-00-72).

Pursuant to a legislative requirement, GAO provided information on small
business bid protests that have been filed in district courts and the
United States Court of Federal Claims (COFC) since the Administration
Dispute Resolution Act took effect on December 31, 1996, focusing on
the: (1) number of bid protest cases filed in the U.S. district courts
and COFC between January 1, 1997, and April 30, 1999, that were filed by
small businesses, the type of agencies involved, and the amount of the
procurement at issue; (2) perceived advantages and disadvantages for
small businesses filing bid protest cases in each judicial forum; and
(3) characteristics of district court and COFC bid protest cases,
particularly those filed by small businesses, that could be used to
assess these perceived advantages and disadvantages.

GAO noted that: (1) between January 1, 1997, and April 30, 1999, at
least 66 bid protest cases were filed in U.S. district courts; (2)
during the period January 1, 1997, through August 1, 1999, 118 bid
protest cases were filed in COFC; (3) on the basis of available data,
using an inclusive definition of small business, GAO found about half of
the cases in both district courts and COFC were filed by small
businesses; (4) defense procurements were the subject of the majority of
small business protests in both district courts and COFC; (5) for those
cases for which the value of the procurement was available, the majority
of the small business procurements in district courts and COFC were for
$10 million or less; (6) the case data available provide a limited basis
for assessing the perceived advantages and disadvantages of retaining
district court jurisdiction for bid protest cases, therefore, GAO draws
no conclusions based on these data; (7) proponents of retaining district
court jurisdiction assert that small businesses may be able to reduce
the costs of filing a protest case in federal court by filing in their
local district court using counsel from those local districts; (8)
requiring small businesses to file all their judicial protest cases with
COFC could raise their protest costs, perhaps prohibitively; (9) GAO
found that more small businesses filed in COFC than filed in district
courts; (10) of the 33 small business cases filed in district courts, 18
were filed in the protesters' local district courts; (11) with regard to
potential jurisdictional issues associated with bid protest cases, GAO
found that the legal issues raised in the bid protest cases filed in
district courts and COFC fell into the same general categories; (12) in
both forums, the issue raised most frequently was the propriety of
agency evaluation of proposals; (13) in both district courts and COFC,
the results of bid protests were mixed; (14) it was not clear that small
businesses were more likely to prevail in district courts than COFC;
(15) the courts usually denied injunctive relief to protesters
regardless of whether they were small businesses or not; (16) in 30
district court cases and 29 COFC cases, the courts dismissed the cases
on the voluntary motion of the protester or the protester and government
jointly; (17) in some cases the voluntary dismissal was because the
parties had reached a settlement that responded to the protester's
claims; and (18) in actions other than granting motions for voluntary
dismissal, the courts generally ruled against the protester, with only
one district court ruling in the protester's favor.

--------------------------- Indexing Terms -----------------------------

 REPORTNUM:  GGD/OGC-00-72
     TITLE:  Bid Protests: Characteristics of Cases Filed in Federal
	     Courts
      DATE:  04/17/2000
   SUBJECT:  Bid protests
	     Small business
	     Small business contractors
	     Federal procurement
	     Jurisdictional authority
	     Courts (law)
	     Statistical data

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GAO/GGD/OGC-00-72

BID PROTESTS: Characteristics of Cases Filed in Federal Courts
(GAO/GGD/OGC-00-72) BID PROTESTS Characteristics of Cases Filed in
Federal Courts United States General Accounting Office GAO Report
to Congressional Committees April 2000 GAO/ GGD/ OGC- 00- 72
United States General Accounting Office General Government
Division Washington, D. C. 20548 Page 1 GAO/ GGD/ OGC- 00- 72 Bid
Protests B-282743 April 17, 2000 The Honorable Fred Thompson
Chairman The Honorable Joseph Lieberman Ranking Minority Member
Committee on Governmental Affairs United States Senate The
Honorable John Warner Chairman The Honorable Carl Levin Ranking
Minority Member Committee on Armed Services United States Senate
The Honorable Dan Burton Chairman The Honorable Henry Waxman
Ranking Minority Member Committee on Government Reform House of
Representatives The Honorable Floyd Spence Chairman The Honorable
Ike Skelton Ranking Minority Member Committee on Armed Services
House of Representatives Currently, an eligible person or business
may file a protest challenging a federal contract award or the
procedure by which the offers were solicited. Protests may be
filed before or after the contract is awarded. Under the
Administrative Dispute Resolution Act (ADRA) of 1996, 1 the 94 U.
S. district courts and the United States Court of Federal Claims
(COFC) 2 have the same jurisdiction to decide bid protest cases.
In addition, district 1 P. L. 104- 320, see 28 U. S. C. 1491( b).
2 The 94 district courts are located in the 50 states; the
District of Columbia; the Commonwealth of Puerto Rico; and the U.
S. territories of the Virgin Islands, Guam, and the Northern
Mariana Islands. COFC is located in Washington, D. C. B-282743
Page 2 GAO/ GGD/ OGC- 00- 72 Bid Protests courts and COFC may
grant any relief that the court considers appropriate, except that
monetary relief is limited to bid preparation and proposal costs.
Under ADRA, district court jurisdiction for bid protest cases is
scheduled to expire on January 1, 2001. The expiration of district
court jurisdiction is supported by some groups and opposed by
others. In response to ADRA, and as agreed with the committees of
jurisdiction, this report reviews the cases, particularly small
business cases, that have been filed in district courts and COFC
since ADRA took effect on December 31, 1996. Our objectives were
to (1) identify the number of bid protest cases filed in the U. S.
district courts and COFC between January 1, 1997, and April 30,
1999, that were filed by small businesses, the type of agencies
involved (civilian or defense), and the amount of the procurement
at issue; (2) identify the perceived advantages and disadvantages,
particularly for small businesses, of filing bid protest cases in
each judicial forum, the district courts and COFC; and (3) obtain
available data on the characteristics of district court and COFC
bid protest cases, particularly those filed by small businesses,
that could be used to assess these perceived advantages and
disadvantages. As agreed with the committees of jurisdiction, we
focused our analysis on the characteristics of the bid protest
cases filed since concurrent jurisdiction became effective,
including the characteristics that may be relevant to assessing
the arguments in favor of and opposition to retaining district
court jurisdiction. However, our analysis did not address the
policy arguments in favor of or opposition to retaining district
court jurisdiction for example, whether it was desirable to retain
the district courts as an Article III judicial forum (one in which
judges have life tenure) for bid protest cases or to have a more
uniform body of procurement case law. 3 Between January 1, 1997,
and April 30, 1999, at least 66 bid protest cases were filed in U.
S. district courts. 4 During the period January 1, 1997, 3
Although COFC is an Article I court one in which judges are
appointed for a specific number of years appeals of COFC decisions
are heard by the U. S. Court of Appeals for the Federal Circuit,
which is an Article III court one in which judges are appointed
for life. Article I and Article III refer to the articles of the
U. S. Constitution under which the courts were created. 4 Although
we began with a list of about 94 potential bid protest cases, we
did not receive the case files for 10 cases. A review of the
remaining 84 case files revealed that 19 of these cases were
duplicates or did not involve bid protests. Among the 10 cases we
did not receive was a sealed case. However, we were able to review
this case file at the district court, and we counted it among the
66 bid protest cases we reviewed. Results in Brief B-282743 Page 3
GAO/ GGD/ OGC- 00- 72 Bid Protests through August 1, 1999, 118 bid
protest cases were filed in COFC. 5 On the basis of available
data, using an inclusive definition of small business, 6 we found
that about half of the cases in both district courts (33 of 66)
and COFC (61 of 118) were filed by small businesses. Defense
procurements were the subject of the majority of small business
protests in both district courts (19 of 33) and COFC (40 of 61).
For those cases for which the value of the procurement was
available, the majority of the small business procurements in
district courts (23 of 27) and COFC (27 of 49) were for $10
million or less. Those who support the retention of district court
jurisdiction for bid protest cases assert that (1) requiring small
businesses to file all their protests in COFC, rather than having
the option of filing in their local district courts, could make it
more expensive for all businesses, particularly small businesses,
to file bid protest cases; (2) district courts provide an Article
III forum (one in which judges have life tenure) for bid protest
issues; (3) COFC judges may be unable to travel on short notice to
conduct hearings in bid protest cases; and (4) jurisdictional
problems may arise from the sunsetting of district court
jurisdiction. Those who support COFC as the sole judicial forum
for bid protest cases assert that (1) consolidating jurisdiction
in COFC will provide the opportunity to develop more uniform
procurement case law than is possible among 94 district courts;
(2) a single judicial forum for bid protests will eliminate forum
shopping (litigants seeking the most favorable judicial forum in
which to file their cases); (3) COFC has broad authority to hear
issues related to bid protests; (4) COFC judges can travel as
necessary. The case data available provide a limited basis for
assessing the perceived advantages and disadvantages of retaining
district court jurisdiction for bid protest cases; therefore, we
draw no conclusions based on these data. Proponents of retaining
district court jurisdiction assert that small businesses may be
able to reduce the costs of filing a protest case in federal court
by filing in their local district court using counsel from those
local districts. Requiring small businesses to file all their
judicial protest cases with COFC could raise their protest costs,
perhaps prohibitively. We found that more small businesses filed
in COFC (61 cases) than filed in district courts (33 cases). Of
the 33 small business cases filed in district 5 Because COFC
tracks bid protest cases as a separate category, we were able to
obtain more recent data for COFC from the COFC Clerk of Court. 6
We considered a bid protester to be a small business if (1) the
protester was identified as a small business in the case files,
(2) the attorney for the protester indicated that the protester
was a small business, or (3) the protester was registered as a
small business with the Small Business Administration. B-282743
Page 4 GAO/ GGD/ OGC- 00- 72 Bid Protests courts, 18 were filed in
the protesters' local district courts. All but 3 of these 18 cases
used legal counsel from outside the Washington, D. C., area. 7
However, the legal counsel used were not necessarily located in
the districts in which the cases were filed. Of the 15 small
business cases that were not filed in the protester's home
district, 12 were filed in the D. C. district, and 9 of the 15
cases used counsel from the Washington, D. C., area. In COFC, 15
of the 61 small business cases were filed by counsel located
outside the Washington, D. C., area. We had no data on whether the
protesters' case costs, including attorney costs, were more or
less in those cases in which they filed in their local district
courts or filed in COFC and used non- D. C. area counsel. With
regard to potential jurisdictional issues associated with bid
protest cases, we found that the legal issues raised in the bid
protest cases filed in district courts and COFC fell into the same
general categories. In both forums, the issue raised most
frequently was the propriety of agency evaluation of proposals.
However, COFC did not accept jurisdiction under ADRA in every bid
protest case filed in COFC. For example, COFC transferred one case
to district court for lack of jurisdiction; and in another case,
the U. S. Court of Appeals for the Federal Circuit reversed COFC's
ruling that it did not have jurisdiction under ADRA. With regard
to COFC judges ability to travel for bid protest cases, we found
that COFC judges' had traveled to hold hearings in two bid protest
cases between January 1, 1997, and August 1, 1999. The Chief Judge
stated that COFC judges could travel as necessary. In both
district courts and COFC, the results of bid protests were mixed.
It was not clear that small businesses were more likely to prevail
in district courts than COFC. The courts usually denied injunctive
relief to protesters regardless of whether they were small
businesses or not. However, in some cases the government
voluntarily agreed to stay the performance of its contract until
the court ruled. In 30 district court cases and 29 COFC cases, the
courts dismissed the cases on the voluntary motion of the
protester or the protester and government jointly. In some cases
the voluntary dismissal was because the parties had reached a
settlement that responded, at least in part, to the protester's
claims. In actions other than granting motions for voluntary
dismissal, the courts generally ruled against the protester, with
only one district court ruling in the protester's favor a 7 Where
the attorney's firm had more than one office location, we used the
office address of the attorney representing the protester. B-
282743 Page 5 GAO/ GGD/ OGC- 00- 72 Bid Protests decision that was
reversed on appeal. COFC ruled in favor of the protestor in 19
cases, including 11 small business cases. Currently, an eligible
person or business may file a protest challenging a federal
contract award and the procedure by which the contract offers were
solicited in their choice of four forums: (1) the agency whose
procurement procedures are being challenged, (2) the U. S. General
Accounting Office (GAO), (3) U. S. district court, (4) or COFC.
Agency actions taken pursuant to GAO decisions may be reviewed by
the U. S. district courts or COFC. Few bid protest cases were
heard in federal district courts prior to 1970, principally
because district court jurisdiction over such cases was not
clearly established. In 1970 the U. S. Court of Appeals for the
District of Columbia Circuit ruled that challenges to contract
awards could be filed in district courts under the provisions of
the Administrative Procedure Act. 8 In 1982, Congress authorized
COFC to grant equitable relief, including injunctive relief, in
preaward protests that is, cases filed prior to the time the
contract was awarded. 9 This statute also granted COFC exclusive
jurisdiction to grant equitable relief in any contract claim
brought before the contract is awarded. COFC did not have
authority to hear postaward protests. ADRA provided that effective
December 31, 1996, U. S. district courts and COFC would have
concurrent jurisdiction for federal bid protest cases whether
filed before or after the agency awarded the contract. 10 The act
also mandated that each court review such cases using the
standards applicable under the Administrative Procedure Act the
standards that had been applied by the district courts since 1970.
Under ADRA, district courts and COFC may award any relief that the
court considers appropriate, except that monetary relief is
limited to bid preparation and proposal costs. ADRA also provided
that federal district court jurisdiction for bid protest cases
would expire on January 1, 2001, unless extended by Congress prior
to that date. 8 Scanwell Laboratories, Inc. v. Shaffer, 424 F. 2d
859 (D. C. Cir. 1970). 9 Federal Courts Improvement Act of 1982,
P. L. 97- 164. 10 Specifically, the concurrent jurisdiction covers
an action 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. (28 U. S. C. 1491( b)( 1)).
Background B-282743 Page 6 GAO/ GGD/ OGC- 00- 72 Bid Protests In
response to ADRA, and as agreed with the committees of
jurisdiction, our objectives were to (1) identify the number of
bid protest cases filed in the U. S. district courts and COFC
between January 1, 1997, and April 30, 1999, that were filed by
small businesses, the type of agencies involved (civilian or
defense), and the amount of the procurement at issue; (2) identify
the perceived advantages and disadvantages, particularly for small
businesses, of filing bid protest cases in each judicial forum-
the district courts and COFC; and (3) obtain and review available
data on the characteristics of bid protest cases, particularly
those filed by small businesses, that could be used to assess
these perceived advantages and disadvantages. We used several
sources of information to identify bid protest cases. COFC
provided a list of bid protest cases filed in COFC from January
29, 1997, through August 1, 1999. 11 Because district courts do
not track bid protest cases as a separate civil case category, we
used a variety of sources to identify potential district court
cases. These included data from the Department of Justice,
American Bar Association, other sources recommended by both, and
district court clerks of court. Because there is no definitive
list of district court bid protest cases, it is possible that our
list of such cases is incomplete. To identify the perceived
advantages and disadvantages of permitting district court
jurisdiction to expire, we met with representatives from bar
associations, contractor associations, other interested groups,
and federal agencies; reviewed documents these groups provided;
and reviewed the legislative history of ADRA. The COFC Clerk of
Court provided a list of 118 bid protest cases 104 during our
initial review and 14 additional cases identified during the
agency comment period. Our final report includes all 118 cases.
For those potential bid protest cases identified, we obtained
copies of documents from the case files from the U. S. district
courts or COFC and used a data collection instrument to record a
variety of information about each case. We were unable to obtain
these case file materials in 10 of the 94 potential district court
cases identified. 12 Complaints in 36 of 118 COFC cases were
sealed, and in 18 of these 36 cases the complete case file was
sealed. Moreover, incomplete or missing data precluded us from
determining with certainty how many of the companies that filed
bid protest cases in either the district courts or COFC were small
businesses. Our analysis of the potential advantages and
disadvantages was based on 11 No bid protest cases were filed in
COFC between January 1, 1997, and January 28, 1997. 12 Among these
10 cases was a sealed case that we were permitted to review, but
not copy, at the clerk of court's office. Scope and Methodology B-
282743 Page 7 GAO/ GGD/ OGC- 00- 72 Bid Protests an analysis of
the data available in the case files of the bid protest cases we
identified and attorney interviews. Where possible, we conducted
telephone interviews with the attorneys representing the parties
in each case to discuss their views regarding the reasons they
chose to file in district court or COFC and the advantages and
disadvantages of each judicial forum. We also discussed additional
information on the dollar amount of the procurement at issue and
whether the protester was a small business. For some cases the
attorneys for one or more parties in the case did not wish to
discuss the case. Due to these data limitations, we cannot
generalize to all bid protest cases filed during the period of our
review. Additional details on our objectives, scope, and
methodology are found in appendix I. We did our work in
Washington, D. C., and Los Angeles, CA, between March 1999 and
January 2000 in accordance with generally accepted government
auditing standards. We requested comments from the Public Contract
Law Section of the American Bar Association, the Federal Bar
Association, the Secretary of Defense, the Attorney General, and
the Chief Judge of COFC, and their comments are discussed at the
end of the letter. We identified a total of 184 bid protest cases
filed in the U. S. district courts and COFC since January 1, 1997
66 district court cases in 31 separate districts (through April
30, 1999) and 118 COFC cases (through August 1, 1999). Of this
total, 52 of the district court cases had been closed by August 1,
1999; and 111 of the COFC cases had been closed by January 18,
2000. (We were able to continually update our data for COFC cases
during our review.) COFC separately tracks bid protest cases, but
district courts do not. The protest cases we reviewed are listed
in appendixes II (district court) and III (COFC). We reviewed the
case files in each of the identified district court cases and in
each of the unsealed COFC cases. 13 Table 1 shows the basic
characteristics of the 184 bid protest cases we reviewed. One of
the cases was filed in COFC, which maintained that it did not have
jurisdiction and transferred the case to district court. Another
case was filed first in district court and then in COFC, which
dismissed the case because it was pending in district court. We
counted both of these cases as filings in each judicial forum. In
addition, one protester filed two separate cases in the same
district court involving a single solicitation, and another
protester filed two 13 The district court permitted us access to
the single sealed district court case. Information for this case
is aggregated with the data for all other district court cases.
Characteristics of Bid Protest Cases Filed Between January 1,
1997, and August 1, 1999 B-282743 Page 8 GAO/ GGD/ OGC- 00- 72 Bid
Protests separate cases in different district courts involving the
same solicitation. We counted these as four separate filings.
Complaints were sealed in 36 of the 118 COFC cases, and the entire
file was sealed in 18 of these 36 cases. For these 18 cases, no
case details were available in the case files, except the docket
sheet. Consequently, the COFC data shown in table 1 are based on
the 100 unsealed cases we reviewed, case file data available in
those 36 cases in which only the complaint was sealed, and data
from attorney interviews on sealed cases. U. S. District Courts
COFC Case characteristic a Total cases Small business cases b
Total cases Small business cases b Total cases filed 66 33 118 61
Preaward cases 10 2 26 12 Postaward cases 56 31 78 44 Total cases
under seal 1 1 18 5 Total cases closed c 52 29 111 58 Type of
agency procurement: Civil 35 13 32 21 Defense 29 19 69 40 Both d 2
1 0 0 Dollar range of procurement at issue: e Less than $1, 000,
000 8 8 9 7 $1,000,000 to $10, 000, 000 20 15 29 20 $10,000,001 to
$50,000,000 10 3 37 19 $50,000,001 to $100,000,000 1 0 18 2
$100,000, 001 to $500, 000, 000 3 0 5 1 $500,000, 001 to $1
billion 1 0 1 0 More than $1 billion 2 1 1 0 a The numbers in the
table include data from unsealed cases; any data available for
sealed cases (e. g., docket sheets); and information from attorney
interviews (e. g., whether protester was small business). b For 9
of the 66 district court cases it was not clear if the case was
filed by a small business. For 5 of the 118 COFC cases, we could
not determine from the case files or interviews whether the
complaint was filed by a small business. c Totals as of August 1,
1999, for district court cases and January 18, 2000, for COFC
cases. d Two cases involved both defense and civilian agency
defendants. e Actual or estimated amount available for 45 of 66
district court cases and 100 of 118 COFC cases. For a number of
cases the amount of the procurement is based on information from
attorney interviews. Source: GAO analysis of district court and
COFC case files and data from attorney interviews. Table 1:
Characteristics of Bid Protest Cases Filed in the U. S. District
Courts and Court of Federal Claims During the Period of Our Review
B-282743 Page 9 GAO/ GGD/ OGC- 00- 72 Bid Protests More total bid
protest cases, and more small business bid protest cases, were
filed in COFC than were filed in district courts. On the basis of
available data, we identified 33 district court cases and 61 COFC
cases that were filed by small businesses. We used an inclusive
definition of small business. We included a protester as a small
business if (1) the protester was identified as a small business
in the case files, (2) the attorney for the protester indicated
that the protester was a small business, or (3) the protester was
registered as a small business with the Small Business
Administration. Ten district court and 26 COFC cases involved
preaward protests. The district court cases were divided almost
evenly between defense (29) and civilian (35) procurements, and 69
of 100 unsealed COFC cases involved defense procurements. Two of
the district court cases included both defense and civilian agency
defendants. In both the district courts and COFC, the amount of
the procurement at issue varied widely. The amounts ranged from
about $100,000 to about $10 billion in the 45 district court cases
for which data were available. For the 100 COFC cases for which
data were available, the amounts ranged from about $93,000 to
about $2.7 billion. Whether grouped by total case filings or small
business case filings, the amount of the procurement at issue was
generally somewhat larger in COFC than in district court cases.
About 11 of 45 district court cases involved procurements of no
more than $1 million, and 38 of 45 district court cases involved
procurements of no more than $50 million. In COFC, 9 of 100 cases
involved procurements of no more than $1 million; 75 cases
involved procurements of no more than $50 million. In COFC, 18
cases involved procurements of more than $50 million but no more
than $100 million; one district court case fell within this range.
Those who believe that Congress should not permit district court
bid protest case jurisdiction to expire believe that district
courts offer advantages that COFC does not. Similarly, those who
believe that COFC should have sole judicial jurisdiction over such
cases believe that COFC offers certain advantages that district
courts do not. Arguments in favor of retaining district court
jurisdiction over bid protest cases include the following:  It can
be less expensive for small businesses to file bid protest cases
in their local district courts. Requiring that all protest cases
filed in federal court be filed with COFC in Washington, D. C.,
raises the cost for all protesters, but especially small
businesses. For some small businesses, Perceived Advantages and
Disadvantages of Permitting District Court Jurisdiction to Expire
B-282743 Page 10 GAO/ GGD/ OGC- 00- 72 Bid Protests this
additional cost may be prohibitive. Proponents state that
increased costs could result from (1) travel costs for local
counsel to travel to Washington, D. C., for COFC hearings; or (2)
the cost of hiring D. C. area counsel, whose rates may be higher
than those of local counsel in the district where the protester is
located.  Although COFC has authority to travel to hear bid
protest cases, this is not a realistic alternative to filing in
local district courts. Those filing bid protest cases generally
seek quick action from the courts, and it would be difficult for
COFC judges to travel on short notice- for example, to preside
over hearings for temporary restraining orders.  COFC is an
Article I, not Article III, 14 court (that is, COFC judges do not
have life tenure) and eliminating district court jurisdiction
would remove all Article III trial court jurisdiction for bid
protest challenges.  Given the broad jurisdiction granted under
ADRA e. g., any objection by an interested party to an alleged
violation of statute or regulation in connection with a
procurement or proposed procurement the sunset of district court
jurisdiction has the potential to raise numerous jurisdictional
problems. Arguments in favor of consolidating judicial bid protest
jurisdiction in COFC include:  It would foster a uniform body of
law in bid protest cases. A single court, COFC, would decide bid
protest cases; and a single court of appeals, the U. S. Court of
Appeals for the Federal Circuit, would hear appeals from COFC. In
contrast, there are 94 district courts and 12 circuit courts of
appeals that hear appeals from district court decisions. 15 Thus,
it is possible to have conflicting interpretations of federal
procurement law among the 94 districts and 12 circuit courts of
appeals.  It would eliminate forum shopping whereby the protester
seeks to select a district court that may best serve its interest.
14 This term refers to Article III of the U. S. Constitution.
Judges appointed under Article III are appointed to lifetime
appointments and may be removed from office only through the
impeachment process. Judges appointed under Article I, such as
COFC judges, are appointed for a specific number of years, such as
15 years. 15 District courts are organized into 12 geographic
circuits, with a court of appeals for each circuit. Each court of
appeals hears appeals from the district courts within its circuit.
For example, the Third Circuit Court of Appeals hears cases from
district courts in Delaware, Pennsylvania, New Jersey, and the U.
S. Virgin Islands. B-282743 Page 11 GAO/ GGD/ OGC- 00- 72 Bid
Protests  COFC can travel to hold hearings throughout the nation,
if needed. Some of the arguments for and against retaining
district court jurisdiction are policy arguments that cannot be
addressed using data from the case files. Examples would include
whether it is desirable to retain an Article III forum for bid
protest cases or whether it is desirable to have a more uniform
body of procurement case law. However, data from the cases may
shed some light on some of the other arguments. In reviewing the
data available on these potential advantages and disadvantages, we
focused principally on data that could be obtained from the case
files regarding the characteristics of the bid protest cases filed
in district courts and COFC since January 1, 1997. This included
the (1) number of cases in district courts and COFC that were
filed by small businesses, (2) the dollar amount of the
procurement at issue, (3) the number of cases small businesses
filed in their local district courts, (4) the number of cases in
which small businesses used local legal counsel, (5) the legal
issues raised in district court and COFC cases, and (6) the
general outcomes of small business protest cases filed in district
courts and COFC. We supplemented our case file reviews with
attorney interviews. However, these data provide a limited basis
for assessing the advantages and disadvantages of retaining
district court jurisdiction for bid protest cases; therefore, we
draw no conclusions based on these data. Proponents of retaining
district court jurisdiction assert that eliminating the
jurisdiction will raise costs for companies filing bid protest
cases. This would be especially significant for small businesses
with limited resources that are located outside the Washington, D.
C., area. Such businesses would no longer be able to file cases in
the districts in which they are located. Proponents state that it
is usually less expensive for small businesses not located in the
Washington, D. C., area to file their cases in their local
district courts using local counsel. Such counsel, it is argued,
would usually be less expensive than Washington, D. C., area
counsel. Although we do not know why each case was filed in a
particular district court or COFC, we found that more small
business cases were filed in COFC than in district courts. About
half of the total bid protest cases we reviewed in both COFC (61
of 118) and district courts (33 of 66) were filed by small
businesses. As shown in table 2, about half of all district court
bid protest cases (31 of 66) and about half of district court
small business cases (15 of 33) were filed in just two districts-
D. C. and Eastern Virginia. The Eastern Virginia district is
adjacent to the D. C. district; three of the Case Data on Small
Business Protesters Small Business Filings Were Split Between
District Courts and COFC B-282743 Page 12 GAO/ GGD/ OGC- 00- 72
Bid Protests four cases filed in that district were filed in
Alexandria, VA, directly across the river from Washington, D. C.
16 Total cases Small business cases Cases filed in D. C. or
Eastern Virginia districts 31 15 Filed by D. C. area- counsel a 27
11 Filed by counsel located outside D. C. area 4 4 Cases filed in
other districts 35 18 Filed by D. C.- area counsel 5 1 Filed by
counsel located outside D. C. area 30 17 a We defined D. C. area
counsel as those whose office addresses were in D. C. or the
adjacent Virginia and Maryland counties. Where the attorney's firm
had more than one office location, we used the office address of
the attorney representing the protester. Source: GAO analysis of
bid protest case files. Of the 33 district court small business
cases we identified, 18 were filed in the protester's local (or
home) district, including 3 that were filed in the D. C. or
Eastern Virginia districts. In all but 3 of these 18 cases, the
protester used counsel from outside the Washington, D. C., area.
However, the counsel used was not necessarily located in the
districts in which the cases were filed. For example, a case filed
in California used counsel from D. C. Of the 15 small business
cases that were not filed in the protester's home district, 12
were filed in the D. C. district, and 9 used counsel from the D.
C. area. The remaining three cases were filed in the districts of
Utah, Northern Illinois, and Southern New York, respectively. We
found that 25 of 117 COFC cases were filed by counsel outside the
Washington, D. C., area. 17 Of the 61 COFC cases filed by small
businesses, 15 were filed by counsel outside the Washington, D.
C., area. We had no data on whether the protesters' case costs,
including attorney costs, were more or less in those cases in
which protesters filed in their local district courts or COFC and
used non- D. C.- area counsel. We interviewed 27 attorneys who
represented plaintiffs in 28 of 66 district cases and 70 attorneys
who represented plaintiffs in 104 of 118 bid protest cases. Some
attorneys did not wish to discuss their cases. The attorneys'
reasons for their choice of judicial forum varied widely. For the
27 16 Department of Defense headquarters (the Pentagon) is located
in the Eastern District of Virginia. The single Eastern District
of Virginia bid protest case not filed in Alexandria was filed in
Norfolk, Virginia. 17 Data were not available for one case. Table
2: Use of Local and D. C. Area Counsel in District Court Bid
Protest Cases Filed Between January 1, 1997, and April 30, 1999
Protesters Who Filed Locally Generally Used Non- D. C.- Area
Counsel Reasons for Attorneys' Choice of Judicial Forum Varied
Widely B-282743 Page 13 GAO/ GGD/ OGC- 00- 72 Bid Protests
attorneys who filed in district courts, the reasons offered most
frequently for choosing district court were cost considerations
(eight), time (seven) and familiarity with the district court
(six). Among other reasons mentioned were the proximity of the
district court; the COFC's lack of jurisdiction over a case; the
district court offered greater opportunity for discovery and
injunctive relief; and fairness. Attorney reasons for filing in
COFC were too varied to be categorized. Among the reasons
mentioned were that COFC had more expertise in complex procurement
cases; COFC can move cases more quickly than district courts,
particularly compared to district courts with heavy criminal
caseloads; COFC has issued a large number of published opinions
compared to district courts; and there is less predictability in
district court outcomes. However, 45 of the 70 attorneys
interviewed said they favored retaining district court
jurisdiction, believing that a choice of forum was useful and
desirable. We reviewed the legal issues in the 66 district court
and 100 unsealed COFC cases (see app. IV). Our analysis was based
on a review of documents in the court case files. We found that
the legal issues raised in both forums fell into the same general
categories. In both the district court and COFC cases, the issue
raised most frequently was the propriety of agency evaluation of
proposals. Proponents of retaining district court jurisdiction
state that (1) the expiration of district court jurisdiction under
ADRA may create jurisdictional questions that could require
further litigation to clarify; and (2) if COFC declined
jurisdiction, it is possible that some issues could not be raised
in any other court. With regard to jurisdictional issues, COFC
held in two cases, for example, that it did not have jurisdiction
to hear the dispute under ADRA. In one case, COFC held that it
lacked jurisdiction over a maritime bid protest action and
transferred the case to the district court for D. C. 18 COFC
indicated that although it maintains concurrent jurisdiction with
the district courts to consider bid protest actions, jurisdiction
over matters arising in admiralty, including maritime contracts,
has traditionally been with the federal district courts. In the
other case, the U. S. Court of Appeals for the Federal Circuit
reversed a COFC determination that it did not have jurisdiction to
hear a challenge to an agency's determination to proceed 18 Bay
Ship Management, Inc. v. United States, 43 Fed. Cl. 535 (1999).
Legal Issues Raised in Bid Protest Cases Reviewed B-282743 Page 14
GAO/ GGD/ OGC- 00- 72 Bid Protests with contract award or
performance in the face of a GAO protest, under 31 U. S. C. 3553(
c)( 1). 19 We also examined the outcomes of district court and
COFC cases to examine the outcomes for small businesses in each
judicial forum. The results shown in table 3 are broad categories
of general case outcomes, and we recognize that they do not
capture the subtleties of individual cases. As shown in table 3,
in both district courts and COFC, small and non- small business
protesters were unlikely to prevail. In both courts, injunctive
relief was likely to be denied whether the protester was a small
business or not. However, in some cases the court did not rule on
the protester's motion for injunctive relief, or the agency
voluntarily agreed to stay the performance of the procurement
until the court ruled. District courts COFC General case outcome a
Total cases Small business cases Total cases Small business cases
Court rulings on temporary injunctive relief b Granted 7 3 11 6
Denied 34 22 47 26 Subtotal 41 25 58 32 Voluntary dismissals c On
motion of protester 15 8 11 5 On joint motion of protester and
government 15 7 18 6 Subtotal 30 15 29 11 Court actions other than
voluntary dismissals: d Ruled in favor of protester 1 0 19 11
Ruled in favor of government 21 14 60 34 Other e 0 0 3 2 Subtotal
22 14 82 47 a The data in the table are based on data from
unsealed case files; any data available on sealed cases (e. g.,
docket sheets); and information from attorney interviews (e. g.,
whether protester was a small business). The sum of the subtotals
exceeds the number of cases reviewed because more than one court
action may have been occurred in a case. For example, a court may
have granted a protester's motion for temporary injunctive relief,
and the protester and government subsequently filed a joint motion
for voluntary dismissal based on a settlement agreement. b
Includes only those cases in which the court ruled on the
protester's motion for temporary injunctive relief. In some cases,
the court did not rule on the protester's motion for temporary
injunctive relief, or the protester withdrew its motion after the
agency voluntarily agreed to stay performance of the procurement
until the court ruled on the merits of the case. 19 Ramcor
Services Group, Inc. v. United States, 185 F. 3d 1286 (Fed. Cir.
1999) Case Outcomes in District Courts and COFC Generally Similar
Table 3: General Case Outcomes for Bid Protest Cases Reviewed and
Closed B-282743 Page 15 GAO/ GGD/ OGC- 00- 72 Bid Protests c In
some cases in which the court dismissed the case upon the motion
of the protester or upon a joint motion of the protester and
government, the protester obtained some of the relief sought. For
example, the government may have agreed to withdraw the
solicitation, reconsider the protester's offer, or reconsider its
application of a specific criterion used in evaluating the offer.
d Generally, these are cases in which the court ruled on motions
for summary judgment or motions to dismiss (other than voluntary
dismissals). e Includes cases that do not fit the remaining
categories, such as one COFC case in which the court ruled that it
did not have jurisdiction and transferred the case to district
court. Source: GAO analysis of bid protest case files. A number of
cases were closed with the court granting a motion for voluntary
dismissal either by the protester alone or by the protester and
government jointly. In some of these cases, the protester may have
received some of the relief sought. For example, the government
agency may have agreed to reconsider its application of a specific
criterion used in evaluating the offers it received. When the
court ruled on actions other than motions for voluntary dismissal,
both district courts and COFC were likely to rule for the
government, although COFC ruled for small businesses in a greater
proportion of cases (11 of 47) than did district courts (0 of 14).
Appendixes V (district courts) and VI (COFC) each include case
summaries of 10 examples of bid protest cases each filed by small
businesses and 5 that were not filed by small businesses.
Proponents of retaining district court jurisdiction assert that
COFC judges may not be able to travel on short notice to hear bid
protest cases filed by businesses outside of the Washington, D.
C., area. COFC told us that its judges had traveled twice to hear
a bid protest case during the period January 1, 1997, through
August 1, 1999. The Chief Judge of COFC said that COFC judges
could travel, if necessary, to hear cases. We sent a draft of this
report for comment to the Public Contract Law Section of the
American Bar Association, the Federal Bar Association, the
Secretary of Defense, the Attorney General, and the Chief Judge of
COFC. The Attorney General had no comments on the report. In his
written comments, the Acting General Counsel of the Department of
Defense noted that the report's findings provided support for the
Department's position that district court jurisdiction should be
allowed to sunset. The Chief Judge of COFC provided oral comments
in a meeting on March 3, 2000. He noted that the report provided
useful information on the characteristics of bid protest cases
that had not been previously available. In reviewing the list of
COFC cases we had reviewed, COFC's Clerk of Limited Data on COFC's
Judges Ability to Travel Limited Data on COFC Judges' Travel
Agency Comments and Our Evaluation B-282743 Page 16 GAO/ GGD/ OGC-
00- 72 Bid Protests Court identified 14 additional bid protest
cases that had not been previously provided to us. The Chief Judge
asked that we include an analysis of these additional 14 cases in
our final report, and we have done so. As a result, our final
report includes an analysis of 118 COFC bid protest cases. In his
written comments, the chair of the American Bar Association's
Section of Public Contract Law noted that (1) the report's
findings confirmed that U. S. district courts remained an
important judicial remedy in bid protest cases, (2) the limited
case data available do not provide guidance as to the advantages
and disadvantages associated with retaining district court
jurisdiction, (3) the case data do not provide a sound basis on
which to conclude that district court jurisdiction should be
allowed to sunset, and (4) potentially troublesome jurisdictional
issues could generate needless litigation should district court
jurisdiction be permitted to sunset. The Chair also provided more
extensive comments on the issue of allowing district bid protest
jurisdiction to sunset that had been previously sent to us. Our
report focused on an empirical analysis of the cases that have
been filed in district courts and COFC since concurrent
jurisdiction for bid protests took effect data not previously
available. With these data we were able to address many of the
perceived advantages and disadvantages of filing in each judicial
forum. However, as we noted in our report, some of the arguments
for and against retaining district court bid protest jurisdiction
are policy arguments that cannot be addressed using data from the
case files. The Chair of the Federal Bar Association's Government
Contracts Section and the Chair of the Section's Working Group on
the Sunset of U. S. District Court Bid Protest Jurisdiction
provided as their comments a paper drafted by the Working Group
that had previously been provided to us. In those comments, the
Working Group concluded that district court bid protest
jurisdiction may be desirable for a number of reasons. The Working
Group also concluded that there are no clearly significant
benefits to termination of the district courts' jurisdiction, but
none of the factors it examined was grave enough to compel the
conclusion that continued district court jurisdiction is
absolutely necessary. The comments of DOD, the American Bar
Association, and the Federal Bar Association are included in
appendixes VII, VIII, and IX. We are sending copies of this report
to Senator Orrin Hatch, Chairman, and Senator Patrick Leahy,
Ranking Minority Member, Senate Committee on the Judiciary;
Representative Henry Hyde, Chairman, and B-282743 Page 17 GAO/
GGD/ OGC- 00- 72 Bid Protests Representative John Conyers, Ranking
Minority Member, House Committee on the Judiciary; Senator Fred
Thompson, Chairman, and Senator Joseph Lieberman, Ranking Minority
Member, Senate Committee on Governmental Affairs; and to
Representative Dan Burton, Chairman, and Representative Henry
Waxman, Ranking Minority Member, House Committee on Governmental
Reform. We also are sending copies of this report to the Honorable
Janet Reno, Attorney General; the Honorable Loren Smith, Chief
Judge, COFC; the Honorable Leonidas Ralph Mecham, Director,
Administration Office of the U. S. Courts; the American Bar
Association, Section of Public Contract Law; the Federal Bar
Association, Government Contracts Section; and other interested
parties. Copies of this report will be made available to others
upon request. Please contact me or William Jenkins on (202) 512-
8777 if you or your staff have questions about this report. Major
contributors to this report are acknowledged in appendix X.
Richard M. Stana Associate Director Administration of Justice
Issues Page 18 GAO/ GGD/ OGC- 00- 72 Bid Protests Contents 1
Letter 22 Appendix I Objectives, Scope, and Methodology 28
Appendix II Bid Protest Cases Filed in U. S. District Courts
Between January 1, 1997, and April 30, 1999 31 Appendix III Bid
Protest Cases Filed in COFC Between January 1, 1997, and August 1,
1999 35 Appendix IV Summary of Legal Issues Raised in U. S.
District Court and COFC Bid Protest Cases Reviewed Contents Page
19 GAO/ GGD/ OGC- 00- 72 Bid Protests 36 Cases Not Filed by Small
Businesses 36 Appendix V Examples of Bid Protest Cases Filed in U.
S. District Courts Between January 1, 1997, and April 30, 1999
Small Business Cases 38 41 Cases Not Filed by Small Businesses 41
Small Business Cases 44 Appendix VI Examples of U. S. Court of
Federal Claims Bid Protest Cases Filed Between January 1, 1997,
and August 1, 1999 47 Appendix VII Comments From the General
Counsel, Department of Defense 51 Appendix VIII Comments from the
American Bar Association, Section of Public Contract Law Contents
Page 20 GAO/ GGD/ OGC- 00- 72 Bid Protests Appendix IX Comments
From the Federal Bar Association, Government Contracts Section 84
96 Appendix X GAO Contacts and Staff Acknowledgments Table 1:
Characteristics of Bid Protest Cases Filed in the U. S. District
Courts and Court of Federal Claims During the Period of Our Review
8 Table 2: Use of Local and D. C. Area Counsel in District Court
Bid Protest Cases Filed Between January 1, 1997, and April 30,
1999 12 Table 3: General Case Outcomes for Bid Protest Cases
Reviewed and Closed 14 Table I. 1: Number of Bid Protest Cases
Filed in U. S. District Courts and COFC for the Period Covered by
Our Review 23 Table II. 1: District Court Bid Protest Cases
Reviewed 28 Table III. 1: Bid Protest Cases Filed in COFC, January
1, 1997, through August 1, 1999 31 Table IV. 1: Summary of Legal
Issues Raised in District Court and COFC Bid Protest Cases
Reviewed 35 Tables Contents Page 21 GAO/ GGD/ OGC- 00- 72 Bid
Protests Abbreviations ABA American Bar Association ADRA
Administrative Dispute Resolution Act COFC U. S. Court of Federal
Claims DOJ Department of Justice FBA Federal Bar Association FSS
Federal Supply Schedule GSA General Services Administration IFB
Invitation for Bids INS Immigration and Naturalization Service SBA
Small Business Administration Appendix I Objectives, Scope, and
Methodology Page 22 GAO/ GGD/ OGC- 00- 72 Bid Protests Since
December 31, 1996, the United States district courts and the U. S.
Court of Federal Claims have had concurrent jurisdiction for
federal bid protest cases, whether the case was filed before or
after the contract has been awarded. District courts' statutory
jurisdiction for bid protest cases is scheduled to expire on
January 1, 2001. Our objectives were (1) to identify the number of
bid protest cases filed in the United States district courts and
the United States Court of Federal Claims (COFC) between January
1, 1997 and April 30, 1999, that were filed by small businesses,
the type of agencies involved (civilian or defense), and the
amount of the procurement at issue; (2) identify the perceived
advantages and disadvantages, particularly for small businesses,
of filing bid protest cases in each judicial forum (the district
courts and COFC); (3) obtain and review available data on the
characteristics of district court and COFC bid protest cases,
particularly those filed by small businesses in each forum, that
could be used to assess these perceived advantages and
disadvantages. To obtain information on the number of bid protest
cases filed in federal district courts and COFC during the period
January 1, 1997, through April 30, 1999, we used several sources
of information. We obtained data from COFC's clerk of court on the
number of bid protest cases filed in COFC during this period. COFC
provided data on cases filed through August 1, 1999. The Clerk of
Court provided a list of 118 bid protest cases 104 during our
initial review and 14 additional cases identified when the draft
report was sent to COFC for comment. Our final report includes all
118 cases. There is no central source of data on the number of bid
protest cases filed in the district courts. The federal judiciary
does not track bid protest cases as a separate category of civil
suit. We obtained information on the number of possible such cases
filed in district courts from the Commercial Litigation Branch of
the Department of Justice's Civil Division, the Executive Office
for U. S. Attorneys, the American Bar Association, other sources
recommended by these organizations, and individual U. S. district
courts. We cross- checked the data provided by each source to
develop a single list. It is possible that there were some bid
protest cases filed in district courts during this period that we
were unable to identify. We identified 94 possible bid protest
cases filed in the district courts between January 1, 1997, and
April 30, 1999. The district courts provided requested documents
from the case files for all but 10 of the 94 possible district
court bid protest cases we had identified. Of these 10 cases, 1
was sealed (we were permitted to review the file in the clerk's
office); 1 was never sent; 5 could not be located by Appendix I
Objectives, Scope, and Methodology Page 23 GAO/ GGD/ OGC- 00- 72
Bid Protests the local district court based on the data we had
about the case; and district courts declined to provide case file
documents for 3 cases that were still under appeal or in trial,
and considered to be open cases. After reviewing the materials
provided, we further determined that 6 of the remaining 84 cases
were duplicates of other cases, which left 78 possible bid protest
cases. After more detailed review of the materials provided for
these 78 possible bid protest cases, we determined that 65 were
bid protest cases and 13 were not. After reviewing the sealed
case, we increased the total number of bid protest cases to 66.
For our definition of bid protest case, we used the ADRA
definition of an action 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 U. S.
C. 1491( b)( 1). Of the 66 bid protest cases we identified, 1 had
been transferred to the district court by COFC. Another case was
filed first in district court and then in COFC, which dismissed
the case because it was pending in district court. We counted both
of these cases as filings in each judicial forum. In addition, one
protester filed two separate cases in the same district court
involving a single solicitation, and another protester filed two
separate cases in different district courts involving the same
solicitation. We counted these as four separate district court
case filings. Table I. 1 shows the total number of cases we
identified as filed in each court during the period January 1,
1997, through April 30, 1999, for district courts and through
August 1, 1999, for COFC. Calendar year District Courts (January
1, 1997 through April 30, 1999) Court of Federal Claims (January
1, 1997 through August 1, 1999) Filed a Closed Filed Closed 1997
24 24 39 39 1998 30 24 47 43 1999 12 4 32 29 Total 66 52 118 111 a
Case file reviews revealed that not all of the 94 cases originally
identified as bid protest cases in district courts were in fact
bid protest cases. Source: GAO analysis of data from federal
agencies, COFC, and ABA. COFC's clerk of court identified 118 COFC
bid protest cases filed between January 1, 1997, and August 1,
1999. Our analysis of COFC cases is based primarily on the 100
unsealed cases we were able to examine. It was not possible to
obtain needed documents in all of the COFC cases because 36 Table
I. 1: Number of Bid Protest Cases Filed in U. S. District Courts
and COFC for the Period Covered by Our Review Appendix I
Objectives, Scope, and Methodology Page 24 GAO/ GGD/ OGC- 00- 72
Bid Protests of the 118 cases (about 31 percent) included sealed
complaints. For 18 of these 36 cases, the entire case file was
sealed, and we were not permitted to view sealed documents. For
the 18 sealed cases, we reviewed the docket sheets any redacted
court orders or opinions. Where possible, we interviewed the
attorneys representing the protester. For those 36 cases with
sealed complaints, we obtained and reviewed available unsealed
case file documents, most of which were redacted in part. However,
we do not know whether the 36 cases in which the complaints were
under seal were similar to or different from those 82 cases whose
complaints were not under seal. Although we have reviewed the
partially redacted opinions and other documents available in the
36 cases with sealed complaints, it is important to note that such
documents by their very nature do not generally provide as
complete a picture as nonredacted documents. We supplemented our
case file review with interviews of attorneys who represented the
protesters in COFC cases, including those cases in which the
complaint or file was sealed. To identify the potential advantages
and disadvantages of the elimination of the district courts'
jurisdiction over bid protest cases particularly for small
businesses we reviewed the literature regarding the jurisdiction
of the district courts and COFC over bid protest cases;
interviewed attorneys who had filed bid protest cases in district
courts, COFC, or both; interviewed the assistant U. S. attorneys
who represented the defendant federal agencies; and interviewed
representatives of associations and interest groups whose members
had been involved in bid protest cases. These included such
organizations as the Chamber of Commerce, Association of General
Contractors, Federal Bar Association (FBA), American Bar
Association (ABA), Small Business Administration (SBA), Department
of Justice's Civil Division, the Defense Logistics Agency, the
Department of Commerce, and the National Defense Industrial
Association (NDIA). In addition, some organizations, such as ABA
and NDIA, provided written comments outlining the potential
advantages for small businesses of retaining district court
jurisdiction. To identify what the experience has been for those
businesses, particularly small businesses, who had filed bid
protest claims in both district courts and COFC, we used several
different sources of information. We sought to obtain the
following information for each possible bid protest case we
identified that had been filed in U. S. District court from
January 1, 1997, through April 30, 1999, and for each COFC case
filed from January 1, 1997, through August 1, 1999: Appendix I
Objectives, Scope, and Methodology Page 25 GAO/ GGD/ OGC- 00- 72
Bid Protests  the name of the company filing the protest;  whether
that company was a small business;  the name of any intervening
parties in the case (such as the firm that won the procurement);
a copy of the complaint, outlining the legal issues raised in the
bid protest;  a copy of any court order or opinion to determine
whether the court ruled in whole or in part in favor of the legal
claims raised by the bid protester;  the names and addresses of
the attorneys of record for the bid protester;  the names and
addresses of the attorneys of record representing the agency;  the
reasons why the protester chose to file in U. S. district court or
COFC. Using our list of possible bid protest cases filed in
district courts, we sent each district court in which at least one
case had been filed the name and docket number (if known) of the
case( s) filed in that court. We contacted the clerk of court in
each of these 37 affected districts to request that the clerk mail
us a copy of the complaint, the response to the complaint, and any
court order or opinion filed in the case. We obtained these
documents for COFC cases directly from COFC in Washington, D. C.
For district court cases in the districts of D. C. and the
Alexandria division of the Eastern District of Virginia, we copied
documents directly from the case files. From these case file
documents, we obtained the names of the businesses filing the
cases, the names of the defending agencies, and the names and
addresses of the lawyers for both the protesters and agencies. We
reviewed the files to identify the nature of the legal issues
raised and the outcomes of the cases. Where available in the
files, we also obtained information on the size and nature of the
procurement and the size and nature of the business that filed the
protest (e. g., annual sales, computer services, or other
factors). However, the case files did not always include
information on the size and nature of the business filing the
protest or the size and nature of the procurement in dispute.
Therefore, to identify the number of small businesses who filed
protest cases in district courts and COFC, we used several
approaches. We compared the names of the companies who filed bid
protests with SBA's PRO- Net database. However, small businesses
are not required to register with SBA. We also reviewed the case
files to determine if the court files indicated that the plaintiff
was a small business. In addition, we interviewed the attorneys
who represented the businesses that filed protests and asked them
whether their clients were small businesses and, if so, the basis
for considering the company a small business. If any of these
sources indicated that the firm that filed the Appendix I
Objectives, Scope, and Methodology Page 26 GAO/ GGD/ OGC- 00- 72
Bid Protests protest was a small business, we counted it as a
small business. However, not all attorneys were willing to discuss
their cases. Given the data limitations, the results should be
considered an estimate of the number of small businesses that
filed in either district courts or COFC. To supplement the
information in the case files on the dollar amount and nature of
the procurement in dispute and to obtain information on why the
protester chose to file in district court or COFC, we used a
structured interview schedule to interview the attorneys of record
for the businesses who filed the protest and the agencies who were
the defendants in these cases. However, not all attorneys were
willing to discuss their cases, and our data on procurement
amounts is based on a portion of the cases reviewed. In some
cases, the attorneys interviewed were able to estimate the amount
of the procurement but did not know the exact amount of the
procurement. Because of these limitations in the data, we have
reported only the range of the value of the procurements in
dispute. We interviewed 48 different attorneys in 52 district
court cases. (Some attorneys had more than one case.) Of these, 27
were attorneys for the plaintiff (protester) in 28 cases, and 21
were attorneys for the defendant in 24 cases. We briefly spoke
with four attorneys two for the plaintiffs and two for the
defendants but did not conduct an actual interview. For example,
one attorney explained that he was not at liberty to discuss the
case. We also spoke with a representative of an office that
represented a defendant but were unable to conduct an interview.
In addition, we spoke with 10 attorneys two for the plaintiff and
8 for the defendants in 9 different cases to confirm, in their
opinions, that the cases from our original list of 94 cases were
not bid protest cases. For COFC cases, where the case file
identified the protester as a small business firm or identified
the amount of the disputed procurement, we used the information
from the case file. However, the majority of COFC case files did
not contain this information. For example, we were able to
identify 14 small business protesters from the case files. To
supplement our case file interviews, we conducted telephone
interviews with 70 attorneys for the plaintiff (protester) in 104
of the 118 bid protest cases filed in COFC between January 1,
1997, and August 1, 1999. (Some attorneys had more than one case.)
If the attorney indicated that his or her client was a small
business, we counted it as such. We also used the attorney's
stated value of the procurement in those cases in which the amount
could not be determined from the case file. Appendix I Objectives,
Scope, and Methodology Page 27 GAO/ GGD/ OGC- 00- 72 Bid Protests
We then analyzed and summarized the information from the case
files and interviews to identify the common experiences, if any,
of business that had filed bid protest cases in the district
courts and COFC during the period of our review. This included
categorizing the case outcomes in district courts and COFC. Each
of the cases was reviewed by an evaluator, who completed the DCI,
and an attorney from our Office of General Counsel, who reviewed
the DCIs and case files. Attorneys from our Office of General
Counsel also categorized the legal issues raised in the bid
protest cases filed in district courts and COFC. We did our work
in Washington, D. C., and Los Angeles between March 1999 and
January 2000 in accordance with generally accepted government
auditing standards. We obtained written comments on a draft of
this report from the Department of Defense, the American Bar
Association's Section of Public Contract Law, and the Federal Bar
Association's Government Contracts Section. These comments are
summarized at the end of the letter and are contained in
appendixes VII, VIII, and IX. Appendix II Bid Protest Cases Filed
in U. S. District Courts Between January 1, 1997, and April 30,
1999 Page 28 GAO/ GGD/ OGC- 00- 72 Bid Protests This appendix
lists the 66 district court bid protest cases that we identified
as filed between January 1, 1997, and April 30, 1999. The cases
are arranged by district and within district by year filed. The
table also indicates which cases were filed by small businesses.
We counted a case as a small business case if (1) the protestor
was identified as a small business in the case file documents; (2)
the attorney who represented the protestor said the protestor was
a small business, or (3) the protestor had registered with the
Small Business Administration. District/ case name Year filed
Small business case District of Columbia Correctional Vendors
Association 1997 Dynamic Decisions, Inc. a 1997  Dynamic
Decisions, Inc. a 1997  Information Systems & Networks Corp. 1997
Lake Michigan Contractors, Inc. 1997  Syska & Hennessy, Inc. 1997
TMC Technologies, Inc. 1997  United International Investigative
Services, Inc. 1997 United Valve Co. 1997  Amfac Resorts, LLC 1998
Aramark Sports and Entertainment Services, Inc. 1998 Arthur D.
Little, Inc. 1998 Correctional Vendors Association 1998 Dayton
Granger, Inc. 1998  Dillingham Construction International, Inc.
1998 DSE, Inc. d/ b/ a Dayron 1998  The Iceland Steamship Co.,
Ltd. Eimskip 1998 Information Handling Services, Inc. 1998 Launch
Support Company, LLC 1998 NWT Inc. 1998  Wackenhut Corrections
Corp. 1998 Worcester Brothers Co., Inc. 1998  Anadac, Inc. 1999
Bay Ship Management, Inc. 1999  Kira, Inc. 1999  Nick Chorak
Mowing 1999 Sealed WRD Venture; NWD Venture 1999 Eastern District
of Virginia Groome Transportation, Inc. 1997  Hunt Building
Corporation 1997 Marine Hydraulics International, Inc. 1997
Omniplex World Services Corporation; MSM Security Services, Inc.
1998  Northern District of Alabama Pemco Aeroplex, Inc. 1998 Table
II. 1: District Court Bid Protest Cases Reviewed Appendix II Bid
Protest Cases Filed in U. S. District Courts Between January 1,
1997, and April 30, 1999 Page 29 GAO/ GGD/ OGC- 00- 72 Bid
Protests District/ case name Year filed Small business case
District of Alaska John MacDonald and Joyce MacDonald 1998
District of Arizona Sun Belt Builders, Inc. 1997  Eastern District
of California Lewis C. Nelson and Sons, Inc. 1998 Northern
District of California Concord Disposal Service, Inc. 1997
National Airmotive Corporation 1998  Southern District of
California San Diego Beverage & Kup 1998  Maxwell Technologies,
Inc. 1998 Middle District of Florida Braswell Services Group, Inc.
1997  Northern District of Florida Hedgecock Electric, Inc. 1997
Middle District of Georgia Spectrum Landscape Services, Inc. 1998
Northern District of Illinois Sabbia Corporation 1997  Neals
Janitorial Service 1997  Southern District of Illinois Russo &
Sons, Inc. 1999  District of Kansas Lawrence Medical Equipment,
Inc. 1998 Eastern District of Kentucky Outdoor Venture Corporation
1998  District of Maryland MilVets Systems Technology, Inc. 1998
District of Massachusetts American Science and Engineering, Inc.
1999 Southern District of Mississippi Madison Services, Inc. 1997
District of New Mexico Peacock, Myers & Adams, P. C. 1998
Southern District of New York Abner Realty, Inc. 1997  Southern
District of Ohio Waste Control Specialists, LLC b 1999 Western
District of Oklahoma David Mitchell Construction, Inc. 1999
Eastern District of Pennsylvania United Ammunition Container, Inc.
1997  Baldt, Incorporated 1998 American Competitiveness Institute
1998 FCA Holdings, Inc. 1997 Western District of Pennsylvania R.
A. Glancy & Sons 1999 Appendix II Bid Protest Cases Filed in U. S.
District Courts Between January 1, 1997, and April 30, 1999 Page
30 GAO/ GGD/ OGC- 00- 72 Bid Protests District/ case name Year
filed Small business case District of South Carolina South
Carolina Military Department 1999 District of South Dakota James
N. Danielson 1998  Eastern District of Texas Walsh Distribution,
Inc. 1999 Northern District of Texas Waste Control Specialists,
LLC b 1997 District of Utah Booth & Associates, Inc. 1997
District of Virgin Islands HAP Construction, Inc. 1998  Western
District of Washington Sterile Surgical Systems, LLC 1998 a Both
of the Dynamic Decisions filings arose from the same solicitation.
b Waste Control filed two suits arising from the same solicitation
one in the Southern District of Ohio and one in the Northern
District of Texas. Sources: District court case files, attorney
interviews, Small Business Administration. Appendix III Bid
Protest Cases Filed in COFC Between January 1, 1997, and August 1,
1999 Page 31 GAO/ GGD/ OGC- 00- 72 Bid Protests This appendix
includes a listing of the118 bid protest cases that COFC's Clerk
of Court provided to us. Table III. 1 lists the cases and
indicates whether the complaint was sealed, the entire case file
was sealed, and the case was filed by a small business protestor.
We counted a case as a small business case if (1) the case was
identified as a small business in the case files, (2) the attorney
for the protestor indicated that the protestor was a small
business, or (3) the protestor was registered as a small business
with the Small Business Administration. Case name Docket number
Sealed complaint Sealed case Small business case a 1997 cases
Cubic Applications, Inc. 97- 29C  Surface Technologies Corp., Inc.
97- 30C Cincom Systems, Inc. 97- 72C  Day & Zimmerman 97- 90C
Sabreliner Corporation 97- 119C Asilomar Management Co. 97- 134C
Allied Technologies Group, Inc. 97- 143C   Greater Richmond
Cleaning, Inc. 97- 164C  Mike Hooks, Inc. 97- 181C  Minor Metals,
Inc. 97- 194C  J. C. N. Construction Co., Inc. 97- 238C  Graphic
Data, LLC 97- 256C  W & D Ships Deck Works, Inc. 97- 308C
Analytical & Research Technology, Inc. 97- 380C  ATA Defense
Industries, Inc. 97- 382C  Aero Corporation, S. A. 97- 416C  Lyons
Security Services, Inc. 97- 505C  CC Distributors, Inc. 97- 517C
Redland Genstar, Inc. 97- 533C Alfa Laval Separation, Inc. 97-
536C The Famous Construction Co. 97- 555C  Delbert Wheeler
Construction, Inc. 97- 586C  Alliant Techsystems, Inc. 97- 626C
SmithKline Beecham 97- 633C Tecom, Inc. 97- 663C  HSQ Technology,
Inc. 97- 667C  Table III. 1: Bid Protest Cases Filed in COFC,
January 1, 1997, through August 1, 1999 Appendix III Bid Protest
Cases Filed in COFC Between January 1, 1997, and August 1, 1999
Page 32 GAO/ GGD/ OGC- 00- 72 Bid Protests Case name Docket number
Sealed complaint Sealed case Small business case a Wackenhut
International, Inc. 97- 680C Peirce- Phelps, Inc. 97- 683C  CCL,
Inc. 97- 721C  Brickwood Contractors, Inc. 97- 844C  ECDC
Environmental 97- 723C FORE Systems Federal, Inc. 97- 731C  The
Centech Group 97- 740C  Clark Construction Group, Inc. 97- 749C
Roxco, Ltd. 97- 768C  Scientech, Inc. 97- 824C RSL Electronics,
Ltd. 97- 837C  Candle Corp. 97- 851C Consolidated Services, Inc.
97- 855C 1998 cases Informatics Corp. 98- 16C  Carter Industries,
Inc. 98- 27C  Washington Baltimore Cellular Ltd. Partnership 98-
50C Meir Dubinsky 98- 56C  United International Investigative
Services, Inc. 98- 80C Metric Construction, Inc. 98- 91C Son
Broadcasting, Inc. 98- 115C  CRC Marine Services, Inc. 98- 128C
Pike's Peak Family Housing, Inc. 98- 147C Ramcor Services Group,
Inc. 98- 152C   United International Investigative Services, Inc.
98- 153C Modern Technologies, Inc. 98- 309C  John C. Grimberg Co.
98- 338C Hewlett- Packard Company 98- 406C  Talton Holdings 98-
409C   FN Manufacturing, Inc. 98- 447C   Sealed case b Sealed case
Firearms Training Systems, Inc. 98- 476C  Winstar Communica- tions
98- 480C Advanced Data 98- 495C   MVM Inc. 98- 520C The Trane
Company 98- 559C Miller Holzworth 98- 576C  Phoenix Air Group 98-
602C Appendix III Bid Protest Cases Filed in COFC Between January
1, 1997, and August 1, 1999 Page 33 GAO/ GGD/ OGC- 00- 72 Bid
Protests Case name Docket number Sealed complaint Sealed case
Small business case a Torrington Company 98- 613C Metric Systems
98- 616C California Marine Cleaning, Inc. 98- 636C  CCL Service
Corporation 98- 664C  PCC Federal Systems 98- 692C    Adirondack
Construction 98- 698C  United International 98- 729C ITT Federal
Services 98- 731C   Hewlett- Packard Company 98- 738C   Data
Systems 98- 745C  Synectics, Inc. 98- 746C  Anderson Columbia
Environmental, Inc. 98- 759C Institute for Captive Chimpanzee Care
and Well- Being, Inc. 98- 780C  Universal Systems and
Technologies, Inc. 98- 806C  Beautify Professional Cleaning
Services, Inc. 98- 829C  U. S. Investigations Services, Inc. 98-
869C Input/ Output Technology, Inc. 98- 836C   Forestry Surveys
98- 844C  Meir Dubinsky 98- 884C  DGS Contract Service, Inc. 98-
891C   Pemco Aeroplex, Inc. 98- 899C Indiana Chair Frame Company
98- 927C  Protec, Inc. 98- 932C   1999 cases 105 West Adams
Building, LLC 99- 3C    S. J. Thomas Co., Inc. 99- 70C  OMV
Medical, Inc. 99- 74C    OMV Medical, Inc. 99- 75C    Envirocare
of Utah 99- 76C Science Applications 99- 81C  District of Columbia
Parking Associates 99- 86C Marine Hydraulics International, Inc.
99- 107C Ryan Company 99- 113C Chas. H. Tompkins Company 99- 122C
Appendix III Bid Protest Cases Filed in COFC Between January 1,
1997, and August 1, 1999 Page 34 GAO/ GGD/ OGC- 00- 72 Bid
Protests Case name Docket number Sealed complaint Sealed case
Small business case a MVM, Inc. 99- 135C   MVM, Inc. 99- 136C
MVM, Inc. 99- 137C   Seattle Security Services, Inc. 99- 139C
Cubic Defense System, Inc. 99- 144C   Akal Security, Inc. 99- 149C
Kellie W. Tipton Construction Company 99- 183C    Bay Ship
Management, Inc. 99- 184C  American Renovation & Construction 99-
171C  Meir Dubinsky 99- 191C  MVM, Inc. 99- 220C Beta Analytics
International, Inc. 99- 222C  Acra, Inc. 99- 337C  Hewlett-
Packard Company 99- 358C   Brickwood Contractors, Inc. 99- 367C
Brickwood Contractors, Inc. 99- 388C  Impresa Construzioni 99-
400C   Stratos Mobile 99- 402C  Cubic Defense Systems 99- 483C J &
D Maintenance and Services 99- 484C    Unified Architecture and
Engineering, Inc. 99- 414C  ES- KO, Inc. 99- 528C   a Where
possible, for sealed cases we attempted through attorney
interviews to determine if the protestor was a small business. In
cases where we have noted that the case files were sealed and the
protestor was a small business, the identification of the
protestor as a small business was based on attorney interviews. b
The name of the protestor was not available for this case in which
the names of the parties were sealed. Sources: COFC Clerk of
Court, case files, and interviews with protestor attorneys.
Appendix IV Summary of Legal Issues Raised in U. S. District Court
and COFC Bid Protest Cases Reviewed Page 35 GAO/ GGD/ OGC- 00- 72
Bid Protests We reviewed the legal issues raised in each of the 65
unsealed bid protest cases filed in U. S. district courts between
January 1, 1997, and April 30, 1999, and each of the 100 unsealed
COFC cases filed between January 1, 1997, and August 1, 1999. The
table below shows the major categories of issues raised. Legal
issue Number of cases in which issue was raised District Court a
COFC a Solicitation issues b 24 25 Evaluation and source selection
c 26 54 Responsibility 2 5 Propriety of discussions 7 19 Bid
Rejection d 5 9 Procurement integrity e 0 5 Override of
Competition in Contracting Act stay of performance 5 1 Postaward
procurement- related actions f 7 8 Small business issues g 6 5
Other h 3 2 a Because some cases raised more than one issue, the
total of the individual entries exceeds the number of cases
reviewed. b Includes specification challenges, bundling of
requirements, failure to solicit, sole- source awards, multiple
awards, use of sealed bidding versus negotiation, and cancellation
of solicitation/ resolicitation. c Includes technical or cost
proposal evaluation, including evaluation of past performance/
experience; waiver of requirements; cost/ technical trade- off or
best value determinations; exclusion from the competitive range;
and favoritism, bias, or unfair treatment in the evaluation of
proposals. d Includes responsiveness and late bids. e Includes
agency release of information and insider information. f Includes
contract modifications, exercise of contract options, and
termination of contract. g Includes Standard Industrial
Classification code and size determinations, nonresponsibility
determinations requiring referral to SBA, and small business
preferences. h District court cases include one case that could
not be categorized due to a lack of information in the file, and
two cases brought against GAO. The two COFC cases involve Equal
Access to Justice Act fees related to a protest action. Source:
GAO analysis of bid protest cases. Table IV. 1: Summary of Legal
Issues Raised in District Court and COFC Bid Protest Cases
Reviewed Appendix V Examples of Bid Protest Cases Filed in U. S.
District Courts Between January 1, 1997, and April 30, 1999 Page
36 GAO/ GGD/ OGC- 00- 72 Bid Protests This appendix includes
examples of bid protest cases filed in U. S. District Courts
between January 1, 1997, and April 30, 1999. The appendix includes
examples of five cases filed by protestors not identified as small
businesses and five cases filed by small businesses. The docket
numbers are shown in parentheses. Launch Support Company, LLC v.
United States (Case No. 1: 98CV02145) Launch Support Company filed
this postaward bid protest case in the U. S. District Court for
the District of Columbia in 1998. Launch Support submitted an
unsuccessful proposal in response to a joint Air Force/ National
Aeronautics and Space Administration (NASA) request for proposals
to provide base operation services at Kennedy Space Center, Cape
Canaveral Air Station, and Patrick Air Force Base. Launch Support
claimed that the government's cost realism analysis of the winning
proposal (submitted by Space Gateway) was unreasonable and that
its selection decision was improper. In an October 16, 1998,
order, the district court granted the defendant's motion for
summary judgment and dismissed the complaint. The court found that
the agency's cost realism analysis and the agency's selection of
Space Gateway was not unreasonable. Wackenhut Corrections
Corporation v. United States (Case No. 98- 1541) Wackenhut
Corrections Corporation filed this postaward bid protest case in
U. S. District Court for the District of Columbia in 1998.
Wackenhut's proposal was eliminated from the competition for a
Bureau of Prisons (BOP) contract to operate a private prison for
inmates that were to be transferred from the District of
Columbia's Lorton Correctional Institution. One of the
requirements in the request for proposal was the demonstration of
legal authority to perform the contract. Wackenhut's proposal was
rejected because, in BOP's view, the firm had not clearly
demonstrated that it had the legal authority to operate a private
prison housing federal inmates at the proposed North Carolina
site. In a July 10, 1998, order, the district court denied
plaintiff's motion for a preliminary injunction. The Court found
that Wackenhut had not made a sufficient threshold showing that
BOP's decision was arbitrary or capricious, because there were
questions about the firm's authority to construct a facility for
out- of- state inmates in North Carolina. On December 18, 1998,
the plaintiff stipulated to a dismissal of the case with
prejudice, which the court granted. Cases Not Filed by Small
Businesses Appendix V Examples of Bid Protest Cases Filed in U. S.
District Courts Between January 1, 1997, and April 30, 1999 Page
37 GAO/ GGD/ OGC- 00- 72 Bid Protests Aramark Sports and
Entertainment Services, Inc. v. United States (Case No. 1:
98CV01990) Aramark Sports and Entertainment Services filed this
preaward bid protest case in the U. S. District Court for the
District of Columbia in 1998. The plaintiff objected to provisions
of a prospectus issued by the National Park Service seeking an
operator for concession services at the Glen Canyon National
Recreation Area for a 15- year period, commencing when the
plaintiff's current concessions contract expired. Aramark claimed
that the terms of the prospectus forced it to forego statutory
rights, including (1) the right of preference in the renewal of
the concession contract; (2) the requirement that upon expiration
or termination of a concession contract, the prior concessioner
must be paid the sound value of its interest in the property used
in the performance of the concession contract; and (3) the
requirement that any concessioner must be granted a reasonable
opportunity to make a profit on its operations as a whole
commensurate with the capital invested and the obligations
assumed. The agency withdrew the prospectus, and agreed to review
the prospectus and resolve various issues raised by the complaint.
On February 16, 1999, the parties moved jointly to dismiss the
case without prejudice, and the court granted the motion. ANADAC,
Inc. v. United States (Case No. 1: 99CV00169) ANADAC filed this
postaward bid protest case in the U. S. District Court for the
District of Columbia in 1999. The plaintiff objected to the
Immigration and Naturalization Service's (INS) award of a contract
for live- scan systems designed to capture the fingerprints of
naturalization applicants for electronic submission to the Federal
Bureau of Investigation (FBI). The plaintiff claimed that (1) the
awardee (Digital Biometrics) failed to demonstrate its ability to
comply with the technical requirements of the solicitation, (2)
the awardee did not have the financial capability to perform, and
(3) INS relaxed delivery requirements for the awardee. On February
19, 1999, the district court denied ANADAC's motion for a
preliminary injunction, finding that the plaintiff had not
demonstrated a substantial likelihood of success on the merits.
The court found that ANADAC did not provide any factual basis to
demonstrate that the awardee had failed its technical
demonstration, that a reasonable basis existed for INS' financial
responsibility determination, and that the delivery schedule fell
within the statement of work. On March 4, 1999, the plaintiff
moved to dismiss the case, and the court granted the motion.
Appendix V Examples of Bid Protest Cases Filed in U. S. District
Courts Between January 1, 1997, and April 30, 1999 Page 38 GAO/
GGD/ OGC- 00- 72 Bid Protests Lawrence Medical Equipment, Inc. v.
United States (Case No. 98- CV- 4153) Lawrence Medical Equipment
filed this postaward bid protest case in the U. S. District Court
for the District of Kansas in 1998. Lawrence Medical Equipment
submitted a proposal to provide in- home oxygen and other
respiratory services for veterans or other beneficiaries receiving
benefits through Veterans Administration medical centers in
Missouri, Kansas, and Illinois and was not selected for award.
Lawrence claimed that its proposal offered the lowest price for
the locations covered by its proposal and that its technical and
past performance qualifications matched, if not exceeded, those of
Home Care, the awardee. Lawrence also claimed that Home Care did
not meet certain accreditation requirements contained in the
solicitation. On October 6, 1998, the court denied Lawrence's
motion for preliminary injunction, finding that although the firm
offered the lowest price, its proposal did not receive an
acceptable technical/ past performance score and that the agency
evaluation of the proposals was not unreasonable. The court also
found that the awardee was an accredited offeror as required by
the solicitation. On December 14, 1998, Lawrence filed a motion to
dismiss the case without prejudice, in order to pursue
administrative challenges. Despite government opposition to the
dismissal, the Court granted the motion on March 3, 1999.
Worchester Brothers Co., Inc. v. United States (Case No. 1:
98CV01634) Worchester Brothers Co. filed this postaward bid
protest case in the U. S. District Court for the District of
Columbia in 1998. The National Park Service had issued a request
for proposals for the stabilization and preservation of the
Washington Monument. Worchester Brothers, an expert in monument
restoration and masonry, claimed that the awardee was given a
higher technical rating than it deserved and that the evaluation
was not done in accordance with the solicitation requirements. The
defendants stated that the awardee's proposal had both the highest
overall technical score and the lowest overall total price and,
therefore, offered the best value to the government. On July 30,
1998, in an oral bench opinion, the district court granted the
National Park Service's motion for summary judgment and ordered
the case dismissed. Small Business Cases Appendix V Examples of
Bid Protest Cases Filed in U. S. District Courts Between January
1, 1997, and April 30, 1999 Page 39 GAO/ GGD/ OGC- 00- 72 Bid
Protests Kira, Inc. v. United States (Case No. 1: 99CV00930) Kira,
Inc., filed this postaward bid protest case in the U. S. District
Court for the District of Columbia in 1999. Kira objected to the
award of a contract, under SBA's section 8( a) program, for
military family housing maintenance at Keesler Air Force Base in
Mississippi. Kira had protested the awardee's size status to SBA,
which determined that the awardee was not a small business under
the relevant Standard Industrial Classification (SIC) code. Kira
filed suit when the Air Force refused to terminate the contract.
After the complaint was filed in district court, the Air Force
terminated the contract and awarded it to Kira. On May 20, 1999,
the plaintiff moved to dismiss the case without prejudice, and the
court granted the motion. Sun Belt Builders, Inc. v. United States
(Case No. CV 97- 106) Sun Belt Builders, Inc., filed this case in
U. S. District Court for the District of Arizona in 1997. Sun Belt
Builders submitted the low bid on a U. S. Army Corps of Engineers
invitation for bids (IFB) for construction of the Tucson Diversion
Channel Recreational Development in Pima County, Arizona. However,
Sun Belt's bid was rejected as nonresponsive because the
certificate of authority for the power of attorney attached to the
bid bond was not dated, calling into question the enforceability
of the bid bond. The IFB required bidders to furnish a bid
guarantee at the time of bid submission. Sun Belt claimed that (1)
a dated certificate on a power of attorney is not a responsiveness
requirement; and (2) if a dated certificate is required, the Corps
should have waived or allowed it to cure the deficiency. On May 9,
1997, the district court granted the Corp's motion to dismiss,
finding that the bid was nonresponsive and that the Corps' refusal
to waive the defect or permit Sun Belt to cure it was not
arbitrary. Braswell Services Group, Inc. v. United States (Case
No. 97- 1409- Civ- J10C) Braswell Services Group filed this
postaward bid protest case in the U. S. District Court for the
Middle District of Florida in 1997. Braswell stated that it had
submitted low offers in response to Navy requests for proposals
for three ship repair contracts. However, Braswell claimed that
its offers were rejected because of a negative past performance
evaluation on another contract, to which the firm claimed the
agency had not given it the opportunity to respond. Braswell also
claimed that the agency's evaluation was conducted in bad faith
and with the specific intent of harming the firm. On December 9,
1997, the district court denied Braswell's motions for Appendix V
Examples of Bid Protest Cases Filed in U. S. District Courts
Between January 1, 1997, and April 30, 1999 Page 40 GAO/ GGD/ OGC-
00- 72 Bid Protests a temporary restraining order and a
preliminary injunction, finding that the firm had not shown a
likelihood of success on the merits. On December 10, 1997,
Braswell submitted a motion to dismiss the case without prejudice,
which the Court granted. United Valve Co. v. United States (Case
No. 97CV00713) United Valve Company filed this postaward bid
protest case in the U. S. District Court for the District of
Columbia in 1997. United Valve submitted a proposal to provide air
turbine starter kit overhauls for C- 130 aircraft at Tinker Air
Force Base and was not selected for the award. United Valve filed
a complaint in district court, stating that the Air Force had
engaged in an impermissible action. United Valve alleged that the
Air Force, without informing it, had informed another offeror that
the Air Force intended to award the contract to United Valve. The
other offeror then submitted a lower offer and was selected for
the award. On December 23, 1997, the parties filed a stipulation
of settlement in which the Air Force agreed to limit the amount of
work performed under the contract and to not exercise the
contract's options. Appendix VI Examples of U. S. Court of Federal
Claims Bid Protest Cases Filed Between January 1, 1997, and August
1, 1999 Page 41 GAO/ GGD/ OGC- 00- 72 Bid Protests This appendix
includes examples of bid protest cases filed with COFC from
January 1, 1997, through August 1, 1999. The appendix includes
examples of five cases filed by businesses that were not small
businesses and five cases filed by small businesses. The docket
numbers are shown in parentheses. Wackenhut International, Inc. v.
United States (No. 97- 680C) This postaward bid protest case was
filed by Wackenhut International, Inc., and Wackenhut De
Guatemala, S. A., A Joint Venture. The protestor sought injunctive
and declaratory relief setting aside the award of the contract by
the U. S. Department of State to Inter- Con Security Systems,
Inc., for security guard services at the U. S. Embassy in
Guatemala. Wackenhut and Inter- Con submitted proposals in
response to the solicitation. Wackenhut contended that the agency
improperly gave the Inter- Con proposal a 5- point evaluation
preference, available to U. S. contractors in guard contracts
abroad pursuant to 22 U. S. C. 4864. Wackenhut alleged that Inter-
Con was not properly licensed and, thus, its proposal was not
entitled to the preference. Wackenhut also contended that the
Inter- Con proposal failed to meet the solicitation's
subcontracting limitations and that the evaluation of Inter- Con's
technical proposal for past performance/ experience and key
personnel was improper. The government contended that Wackenhut's
claims were without merit. In a January 13, 1998, published
decision, the court granted the government's and Inter- Con
Security's cross- motions for summary judgment. The court found
that licensing was a performance requirement, that the
subcontracting limitation challenge was meritless, and that the
evaluation was proper. Judgment was entered dismissing the
complaint on January 14, 1998. Pike's Peak Family Housing, LLC v.
United States (No. 98- 147C) This postaward bid protest case,
filed by Pike's Peak Family Housing, LLC, involved an Army Corps
of Engineers solicitation for privatization of family housing at
Fort Carson in Colorado Springs, Colorado. The contract was
awarded to Keller/ Catellus Fort Carson, LLC, whose proposal
received the highest evaluated score. Pike's Peak, which received
the sixth highest score, filed suit in COFC protesting the
propriety of the agency's evaluation of proposals and discussions.
Cases Not Filed by Small Businesses Appendix VI Examples of U. S.
Court of Federal Claims Bid Protest Cases Filed Between January 1,
1997, and August 1, 1999 Page 42 GAO/ GGD/ OGC- 00- 72 Bid
Protests On April 27, 1998, the complaint was voluntarily
dismissed with prejudice on the basis of a settlement agreement
entered between the plaintiff and defendant. United International
Investigative Services, Inc. v. United States (No. 98153C) This
postaward bid protest case, filed by United International
Investigative Services, Inc., concerned a procurement for guard
services at federal courthouses in four states and Puerto Rico.
After a technical evaluation board's (TEB) initial evaluation of
proposals, United International's proposal had the highest average
technical score and offered the lowest price. The technical
proposals were subsequently rescored by one member of the TEB,
after which the technical score of United International's proposal
tied for fifth place. After several additional rounds of best and
final offers, United International's proposal still offered the
lowest price and received a slightly higher overall point score
(including technical and price factors) than the proposal
submitted by MVM, Inc., which offered the second lowest price.
Upon further review, the contracting officer ultimately raised the
MVM proposal's score by one point for its technical merit,
resulting in MVM's proposal receiving the highest overall point
score. MVM was awarded the contract. United International filed
suit in COFC. United International challenged the evaluation of
proposals, contending that because its proposal was substantially
technically equal to MVM's, it should have been awarded the
contract on the basis of its lower price. In an October 21, 1998
published decision (reissuance of an order filed under seal on
August 3, 1998), the court granted the government's motion for
summary judgment, ruling that any errors in this procurement were
de minimis, did not prejudice the protestor, and did not warrant
overturning the award. On September 8, 1998, United International
appealed to the U. S. Court of Appeals for the Federal Circuit,
which affirmed COFC's ruling on May 6, 1999, in an unpublished
decision. Appendix VI Examples of U. S. Court of Federal Claims
Bid Protest Cases Filed Between January 1, 1997, and August 1,
1999 Page 43 GAO/ GGD/ OGC- 00- 72 Bid Protests Envirocare of
Utah, Inc. v. United States (No. 99- 76C) This preaward bid
protest case, filed by Envirocare of Utah, Inc., challenged the
terms of a solicitation issued by the Army Corps of Engineers for
the removal of radioactive and other hazardous wastes at various
sites. The Corps contemplated awarding up to 10
indefinitedelivery/ indefinite- quantity contracts for a total
value of about $400 million. Awards were to be based on the best
value offered to the government. Among other challenges, 1
Envirocare contended that the solicitation failed to include the
Federal Acquisition Regulation (FAR) provisions governing the
acquisition of commercial items. The Corps maintained that
disposal of radioactive wastes was not a commercial item
acquisition and that the solicitation was not required to include
the FAR provisions cited by the protestor. In a June 11, 1999,
published decision (reissuance of a decision filed under seal on
May 28, 1999), the court granted the government's motion to
dismiss, in part, and entered judgment for the defendant, ruling
that (1) the disposal of radioactive waste services did not fall
within the FAR definition of commercial items and (2) protestor's
remaining challenges lacked merit. On July 19, 1999, Envirocare
appealed to the U. S. Court of Appeals for the Federal Circuit. A
decision, without published opinion, was issued by that court on
September 21, 1999, dismissing the appeal on the basis of a
voluntary dismissal filed by the plaintiff. Chas. H. Tompkins
Company v. United States (No. 99- 122C) This preaward bid protest
case filed by Chas. H. Tompkins Company involved a solicitation
for construction of three new buildings at the Federal Bureau of
Investigation's (FBI) Quantico, VA facility. The solicitation
required each bidder to supply at least five references regarding
its performance of the same or similar work within the prior 3
years and specified that the projects should be within 10 percent
of the bid price. 1 Envirocare also challenged the solicitation
terms regarding licensing and the evaluation of transportation
costs, and the agency's authority to conduct the procurement.
Appendix VI Examples of U. S. Court of Federal Claims Bid Protest
Cases Filed Between January 1, 1997, and August 1, 1999 Page 44
GAO/ GGD/ OGC- 00- 72 Bid Protests Bell/ BCI, the apparent low
bidder, listed at least five prior similar projects. However, the
prices for those projects were not within 10 percent of its
proposed price for the Quantico work. Tompkins filed suit in COFC
challenging any award to Bell/ BCI on the basis that Bell/ BCI
failed to meet the solicitation's definitive responsibility
criteria. In a May 12, 1999, published decision (reissuance of an
unpublished order entered on March 29, 1999), the court found that
the cited provision constituted definitive responsibility
criteria. The court also found that since the agency did not
intend for the provision to do so, the provision was overly
restrictive of competition, providing a compelling reason to
cancel the solicitation. The court granted, in part, Tompkins'
motion for summary judgment. ATA Defense Industries, Inc. v.
United States (No. 97- 382C) This postaward bid protest case,
filed by ATA Defense Industries, Inc., challenged the Army's
placement of an order for a target range upgrade with a General
Services Administration (GSA) Federal Supply Schedule (FSS)
contractor even though 35 percent of the system and services
sought were not listed on FSS. The Army wanted to upgrade two
target ranges at Fort Stewart, GA. The upgrade was valued at
$673,376. Caswell International, a supplier of target systems, had
listed some of its equipment on its FSS contract. The Army found
that about 65 percent of the products and services required for
the upgrade could be acquired under Caswell's FSS contract; the
remaining 35 percent could not. The contracting officer placed an
order with Caswell for the entire upgrade, including the 35
percent of products and services not available on FSS. ATA
Defense, a competitor of Caswell, filed a protest of the purchase
order. ATA Defense alleged that the Army circumvented the
Competition in Contracting Act's requirement for full and open
competition in placing the full order with Caswell. Before placing
the order, the contracting officer issued a justification and
approval document stating that award should be made to Caswell
because it was the only reliable source for the remaining 35
percent of the upgrade products. After the protest was filed at
COFC, the contracting officer issued a second justification and
approval document based on a Small Business Cases Appendix VI
Examples of U. S. Court of Federal Claims Bid Protest Cases Filed
Between January 1, 1997, and August 1, 1999 Page 45 GAO/ GGD/ OGC-
00- 72 Bid Protests determination that unusual and compelling
urgency warranted exempting 35 percent of the upgrade products and
services from competition. In a June 27, 1997, published decision,
COFC determined that the agency's justifications for the sole-
source award of the 35 percent of products and services not listed
on FSS were insufficient. The first justification was found to be
inadequate because other sources were available. The second
justification was made after the award and was considered to be
untimely. The court also rejected the Army's argument that the
award of the additional non- FSS items should be allowed as
incidental to the FSS items ordered. The court granted ATA's
motion for a permanent injunction and ordered the Army to suspend
performance under, and take necessary steps to terminate, the
purchase order. CRC Marine Services, Inc. v. United States (No.
98- 128C) This postaward bid protest case, filed by CRC Marine
Services Inc., challenged the rejection of its lowest priced bids
under three Army Military Traffic Management Command
transportation solicitations. CRC maintained that it was the
subject of an unlawful de facto debarment by the Army based on
CRC's prior suspension and disbarment and bad faith on the part of
the agency. CRC also protested that one of the awardee's bids was
nonresponsive and that the awardee's performance did not comply
with the requirements. In a May 27, 1998, published decision, the
court found that the rejections were reasonably based and there
was no merit to (1) plaintiff's claim that it was de facto
debarred from performance of the requirements or (2) the
plaintiff's challenges to the award. The court rejected CRC's
claims, denied its motion for a permanent injunction, and
dismissed the complaint. Modern Technologies Corporation v. United
States (No. 98- 309C) This postaward bid protest, filed by Modern
Technologies Corporation, challenged the Air Force's award of a
series of task order contracts for technical services. The
plaintiff protested the agency's evaluation of the technical and
cost proposals. The court denied plaintiff's request for
declaratory and injunctive relief; entered judgment for defendant;
and, in a July 2, 1998, unpublished decision filed under seal,
dismissed Modern Technologies' complaint. Appendix VI Examples of
U. S. Court of Federal Claims Bid Protest Cases Filed Between
January 1, 1997, and August 1, 1999 Page 46 GAO/ GGD/ OGC- 00- 72
Bid Protests In a December 21, 1998, order, the court reconsidered
the terms of a protective order issued in the case and ordered the
release of previously protected information it considered to have
only minimal current value. Adirondack Construction Corporation v.
United States (No. 98- 698) This preaward bid protest case, filed
by Adirondack Construction Corporation, concerned the U. S. Army
Corps of Engineers' issuance of an invitation for bid to renovate
a federal building in Rome, NY. Adirondack's representative
submitted the firm's bid late. Adirondack contended that actions
by the Corps were the main cause for the late receipt of
Adirondack's bid. In an October 30, 1998, order, the court granted
judgment for plaintiff and ordered that Adirondack's bid be
treated as received on time. The contract was subsequently awarded
to the plaintiff. The court dismissed the action as moot on
December 22, 1998. American Renovation & Construction Co. v.
United States (No. 99- 171C) This preaward bid protest case filed
by the American Renovation & Construction Company challenged the
Air Force's rejection of its bid to improve military family
housing units as late. American Renovation contended that because
its bid was in the possession of the U. S. Postal Service in time
for timely delivery, the Air Force's rejection of the bid was
improper and contrary to law. On April 1, 1999, American
Renovation & Construction Company moved for voluntarily dismissal
of the case. The court dismissed the complaint on the same day.
Appendix VII Comments From the General Counsel, Department of
Defense Page 47 GAO/ GGD/ OGC- 00- 72 Bid Protests Appendix VII
Comments From the General Counsel, Department of Defense Page 48
GAO/ GGD/ OGC- 00- 72 Bid Protests Appendix VII Comments From the
General Counsel, Department of Defense Page 49 GAO/ GGD/ OGC- 00-
72 Bid Protests Appendix VII Comments From the General Counsel,
Department of Defense Page 50 GAO/ GGD/ OGC- 00- 72 Bid Protests
Appendix VIII Comments from the American Bar Association, Section
of Public Contract Law Page 51 GAO/ GGD/ OGC- 00- 72 Bid Protests
Appendix VIII Comments from the American Bar Association, Section
of Public Contract Law Page 52 GAO/ GGD/ OGC- 00- 72 Bid Protests
Appendix VIII Comments from the American Bar Association, Section
of Public Contract Law Page 53 GAO/ GGD/ OGC- 00- 72 Bid Protests
Appendix VIII Comments from the American Bar Association, Section
of Public Contract Law Page 54 GAO/ GGD/ OGC- 00- 72 Bid Protests
Appendix VIII Comments from the American Bar Association, Section
of Public Contract Law Page 55 GAO/ GGD/ OGC- 00- 72 Bid Protests
Appendix VIII Comments from the American Bar Association, Section
of Public Contract Law Page 56 GAO/ GGD/ OGC- 00- 72 Bid Protests
Appendix VIII Comments from the American Bar Association, Section
of Public Contract Law Page 57 GAO/ GGD/ OGC- 00- 72 Bid Protests
Appendix VIII Comments from the American Bar Association, Section
of Public Contract Law Page 58 GAO/ GGD/ OGC- 00- 72 Bid Protests
Appendix VIII Comments from the American Bar Association, Section
of Public Contract Law Page 59 GAO/ GGD/ OGC- 00- 72 Bid Protests
Appendix VIII Comments from the American Bar Association, Section
of Public Contract Law Page 60 GAO/ GGD/ OGC- 00- 72 Bid Protests
Appendix VIII Comments from the American Bar Association, Section
of Public Contract Law Page 61 GAO/ GGD/ OGC- 00- 72 Bid Protests
Appendix VIII Comments from the American Bar Association, Section
of Public Contract Law Page 62 GAO/ GGD/ OGC- 00- 72 Bid Protests
Appendix VIII Comments from the American Bar Association, Section
of Public Contract Law Page 63 GAO/ GGD/ OGC- 00- 72 Bid Protests
Appendix VIII Comments from the American Bar Association, Section
of Public Contract Law Page 64 GAO/ GGD/ OGC- 00- 72 Bid Protests
Appendix VIII Comments from the American Bar Association, Section
of Public Contract Law Page 65 GAO/ GGD/ OGC- 00- 72 Bid Protests
Appendix VIII Comments from the American Bar Association, Section
of Public Contract Law Page 66 GAO/ GGD/ OGC- 00- 72 Bid Protests
Appendix VIII Comments from the American Bar Association, Section
of Public Contract Law Page 67 GAO/ GGD/ OGC- 00- 72 Bid Protests
Appendix VIII Comments from the American Bar Association, Section
of Public Contract Law Page 68 GAO/ GGD/ OGC- 00- 72 Bid Protests
Appendix VIII Comments from the American Bar Association, Section
of Public Contract Law Page 69 GAO/ GGD/ OGC- 00- 72 Bid Protests
Appendix VIII Comments from the American Bar Association, Section
of Public Contract Law Page 70 GAO/ GGD/ OGC- 00- 72 Bid Protests
Appendix VIII Comments from the American Bar Association, Section
of Public Contract Law Page 71 GAO/ GGD/ OGC- 00- 72 Bid Protests
Appendix VIII Comments from the American Bar Association, Section
of Public Contract Law Page 72 GAO/ GGD/ OGC- 00- 72 Bid Protests
Appendix VIII Comments from the American Bar Association, Section
of Public Contract Law Page 73 GAO/ GGD/ OGC- 00- 72 Bid Protests
Appendix VIII Comments from the American Bar Association, Section
of Public Contract Law Page 74 GAO/ GGD/ OGC- 00- 72 Bid Protests
Appendix VIII Comments from the American Bar Association, Section
of Public Contract Law Page 75 GAO/ GGD/ OGC- 00- 72 Bid Protests
Appendix VIII Comments from the American Bar Association, Section
of Public Contract Law Page 76 GAO/ GGD/ OGC- 00- 72 Bid Protests
Appendix VIII Comments from the American Bar Association, Section
of Public Contract Law Page 77 GAO/ GGD/ OGC- 00- 72 Bid Protests
Appendix VIII Comments from the American Bar Association, Section
of Public Contract Law Page 78 GAO/ GGD/ OGC- 00- 72 Bid Protests
Appendix VIII Comments from the American Bar Association, Section
of Public Contract Law Page 79 GAO/ GGD/ OGC- 00- 72 Bid Protests
Appendix VIII Comments from the American Bar Association, Section
of Public Contract Law Page 80 GAO/ GGD/ OGC- 00- 72 Bid Protests
Appendix VIII Comments from the American Bar Association, Section
of Public Contract Law Page 81 GAO/ GGD/ OGC- 00- 72 Bid Protests
Appendix VIII Comments from the American Bar Association, Section
of Public Contract Law Page 82 GAO/ GGD/ OGC- 00- 72 Bid Protests
Appendix VIII Comments from the American Bar Association, Section
of Public Contract Law Page 83 GAO/ GGD/ OGC- 00- 72 Bid Protests
Appendix IX Comments From the Federal Bar Association, Government
Contracts Section Page 84 GAO/ GGD/ OGC- 00- 72 Bid Protests
Appendix IX Comments From the Federal Bar Association, Government
Contracts Section Page 85 GAO/ GGD/ OGC- 00- 72 Bid Protests
Appendix IX Comments From the Federal Bar Association, Government
Contracts Section Page 86 GAO/ GGD/ OGC- 00- 72 Bid Protests
Appendix IX Comments From the Federal Bar Association, Government
Contracts Section Page 87 GAO/ GGD/ OGC- 00- 72 Bid Protests
Appendix IX Comments From the Federal Bar Association, Government
Contracts Section Page 88 GAO/ GGD/ OGC- 00- 72 Bid Protests
Appendix IX Comments From the Federal Bar Association, Government
Contracts Section Page 89 GAO/ GGD/ OGC- 00- 72 Bid Protests
Appendix IX Comments From the Federal Bar Association, Government
Contracts Section Page 90 GAO/ GGD/ OGC- 00- 72 Bid Protests
Appendix IX Comments From the Federal Bar Association, Government
Contracts Section Page 91 GAO/ GGD/ OGC- 00- 72 Bid Protests
Appendix IX Comments From the Federal Bar Association, Government
Contracts Section Page 92 GAO/ GGD/ OGC- 00- 72 Bid Protests
Appendix IX Comments From the Federal Bar Association, Government
Contracts Section Page 93 GAO/ GGD/ OGC- 00- 72 Bid Protests
Appendix IX Comments From the Federal Bar Association, Government
Contracts Section Page 94 GAO/ GGD/ OGC- 00- 72 Bid Protests
Appendix IX Comments From the Federal Bar Association, Government
Contracts Section Page 95 GAO/ GGD/ OGC- 00- 72 Bid Protests
Appendix X GAO Contacts and Staff Acknowledgments Page 96 GAO/
GGD/ OGC- 00- 72 Bid Protests Richard Stana or William Jenkins,
(202) 512- 8777 In addition to those named above, R. Rochelle
Burns, Richard Griswold, James Russell, and Jan Montgomery made
key contributions to this report. GAO Contacts Acknowledgments
Page 97 GAO/ GGD/ OGC- 00- 72 Bid Protests Page 98 GAO/ GGD/ OGC-
00- 72 Bid Protests Page 99 GAO/ GGD/ OGC- 00- 72 Bid Protests
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