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    Government Contracting Database

    Bid Protests – Cases on Summary Judgment

    Bid protests filed in the United States Court of Federal Claims are usually decided on cross-motions for judgment on the record (each party moves for judgment). The Court has jurisdiction over bid protests pursuant to 28 U.S.C. §1491(b). Section 1491(b)(2) explicitly provides that, in any action under 1491(b), “the court may award any relief that the court considers proper, including declaratory and injunctive relief.” Motions for Judgment on the Record are treated in accordance with the Court rules, RCFC 52.1. As the Rules Committee Note regarding the 2006 adoption of the Rule points out:  

    Summary judgment standards are not pertinent to judicial review upon an administrative record. See Bannum, Inc. v. United States, 404 F.3d 1346, 1355-1357 (Fed.Cir. 2005). Specifically, the now-repealed Rule 56.1 [predecessor to Rule 52.1] did not adopt the overall standard that summary judgment might be appropriate where there were no genuine issues of material fact… To avoid…  confusion, the new rule omits any reference to summary judgment or to the standards applicable to summary judgment…. 

    The standards and criteria governing the review of agency decisions vary depending upon the specific law to be applied in particular cases. The rule does not address those standards or criteria…. 

    Thus, 28 U.S.C. § 1491(b)(4) requires the Court to review the agency’s determinations pursuant to the standard set forth in 5 U.S.C. § 706(2)(A) – whether “arbitrary, capricious, an abuse of discretion, or otherwise not in accordance with law.” On the other hand, when deciding whether the Plaintiff has been prejudiced sufficiently to warrant relief, Rule 52.1 requires the Court “to make factual findings from the record evidence as if it were conducting a trial on the record.” Bannum, supra, 404 F.3d at 1353-1354 (interpreting former Rule 56.1). In contra-distinction to Rule 56 governing summary judgment, the Rule governing judgment upon the administrative record does not provide for withholding judgment because of the existence of an issue of fact, nor for drawing any inference in favor of the non-moving party. “This omission is consistent with a rule designed to provide for trial on a paper record, allowing fact-finding by the trial court” and “is properly understood as intending to provide for an expedited trial on the record.” Bannum, supra, 404 F.3d at 1356-57.  

    As provided in 28 U.S.C. §1491(b)(4), the Court’s review is to utilize the “standard set forth in Section 706 of Title 5,” the Administrative Procedure Act. In reviewing decisions of administrative agencies, the Court declares unlawful and sets aside all agency action, findings, and conclusions that it finds “arbitrary, capricious, an abuse of discretion, or otherwise not in accordance with law.” 5 U.S.C. §706(2)(A); see also 28 U.S.C. §§ 1491(b)(4). Deference to the agency’s decision is contingent upon an offering by the agency of a reasoned explanation for its decision that is in accord with material facts contained in the administrative record. Y.S.K. Constr. Co. v. United States, 30 Fed.Cl. 449, 459 (1994); see also Halter Marine, Inc. v. United States, 56 Fed.Cl. 144, 159 (2003). Indeed, as the Federal Circuit has stated in connection with the Administrative Procedure Act review generally: 

    The Administrative Procedure Act, which governs the proceedings of administrative agencies and related judicial review, establishes a scheme of “reasoned decisionmaking.” Not only must an agency’s decreed result be within the scope of its lawful authority, but the process by which it reaches that result must be logical and rational. Allentown Mack Sales and Service, Inc. v. National Labor Relations Bd., 522 U.S. 359, 374, 118 S.Ct. 818, 139 L.Ed.2d 797 [(1998)] ….  

    In re Sang-Su Lee, 277 F.3d 1338, 1342 (Fed.Cir. 2002). Accordingly, the test for reviewing courts is to determine whether “the contracting agency provided a coherent and reasonable explanation of its exercise of discretion.” Latecoere Int’l, Inc. v. United States Dep’t of Navy, 19 F.3d 1342, 1356 (11th Cir.1994).  

    Once it is determined that there was a significant error in the procurement process, the Court then proceeds to a determination whether the error was prejudicial. Al Ghanim Combined Group Co. Gen. Trad. & Cont. W.L.L. v. U.S., 56 Fed.Cl. 502 (2003). To establish prejudice, a protester must show that: 

    …had it not been for the alleged error in the procurement process, there was a reasonable likelihood that the protester would have been awarded the contract… The standard reflects a reasonable balance between the importance of (1) averting unwarranted interruptions of and interferences with the procurement process and (2) ensuring that protesters who have been adversely affected by allegedly significant error in the procurement process have a forum available to vent their grievances.

    CSE Const. Co., Inc. v. U.S., 58 Fed.Cl. 230 (2003); Data Gen. Corp. v. Johnson, 78 F.3d 1556, 1562 (Fed.Cir.1996). 

    Updated: May 24, 2018

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