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Choice of Forum for Federal Government Contract Bid Protests

A “disappointed offeror” for a U.S. Government Executive Branch contract ordinarily has three major options for contesting the award of a contract to a competitor or its failure to be awarded a contract.1  The disappointed offeror may file a “bid protest” with (1) the agency (i.e., an agency-level bid protest resolved by the Contracting O cer (“CO”) or at a level above the CO), (2) the Government Accountability O ce (“GAO”), or (3) the U.S. Court of Federal Claims (“COFC”).2  Similarly, a prospective oeror that files a bid protest before the submission of bids or proposals (e.g., with respect to the terms of the solicitation)—or some other form of preaward protest—also has the choice of these three forums to file a preaward protest. In addition, in certain situations, a contractor may receive protest-like relief from a board of contract appeals or, possibly, the COFC in a case that is not a bid protest. Finally, one commentator has contended that in spite of the January 1, 2001 elimination by the Administrative Dispute Resolution Act of 1996 (“ADRA”) of U.S. district court bid protest jurisdiction, certain bid protests may still be brought before the district courts.6  Nevertheless, a discussion of the district courts as a potential protest forum, which the authors deem an unlikely occurrence—at least outside of the possible context of maritime Government contract protests—is beyond the scope of this Article.7 

 1 S.K.J. & Assocs. v. United States, 67 Fed. Cl. 218, 223 (2005). up
 2 Id. at 224. up
 3 Id. at 223–24. up
 4 E.g., L-3 Commc’ns Corp., ASBCA 54920, 08-1 BCA ¶ 33,857 (2008). up
 5 Administrative Dispute Resolution Act of 1996, Pub. L. No. 104-320, § 12(d), 110 Stat. 3870, 3875. up
 6 See Peter Verchinski, Note, Are District Courts Still a Viable Forum For Bid Protests?, 32 P. C. L.J. 393 (2003). up
 7 A review of the resolution of protests by the Federal Aviation Administration’s Office of Dispute Resolution for Acquisition is beyond the scope of this Article because the Federal Acquisition Regulation (FAR) is not applicable to FAA procurements and the GAO does not have jurisdiction over FAA protests. See Department of Transportation and Related Agencies Appropriations Act for Fiscal Year 1996, Pub. L. No. 104-50, § 348, 109 Stat. 436, 460–61 (1995) (codified at 49 U.S.C. § 40110(d)(2)(F) (2006)); Department of Homeland Security Appropriations Act, 2006, Pub. L. No. 109-90, 119 Stat. 2064, 2084, tit. V, § 515 (2005); 14 C.F.R. § 17.1 (2008). See generally Clancy, “FAA Protest & Contract Dispute Resolution Procedures,” Briefing Papers No. 99-07 (June 1999). In addition, a review of protests related to public-private competitions under OMB Circular A-76 and the Federal Activities Inventory Reform (FAIR) Act is also beyond the scope of this Article. up

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