On September 13, 2012, the Federal Acquisition Council published a final rule in the Federal Register updating FAR Part 33.* This part of the FAR provides guidance to Federal acquisition officials about the bid protest process, among other forms of contract litigation. Before the update, Part 33 only provided guidance about agency-level protests and protests to the Government Accountability Office (“GAO”). The new rule provides guidance about another important bid protest forum, the U.S. Court of Federal Claims (“COFC”). Specifically, the final rule directs contracting officers to seek advice from their legal advisor regarding bid protest procedures before the COFC, and it directs contracting personnel to the court’s rules for further guidance on the protest process before COFC.
Providing additional regulatory guidance to acquisition officials about protest procedures is a positive development, and procuring agencies, protesters, and other interested parties should reap benefits from it. Increased familiarity with COFC’s rules and increased involvement of legal counsel should lead to a more efficient protest process and could improve protest outcomes, particularly those from the COFC. For example, while the COFC’s rules require Federal agencies to produce the entire administrative record during the proceedings (for the purpose of providing access to all relevant documents and facts the agency relied upon to inform the COFC’s resolution of the case), experienced bid protest counsel know that agencies do not always fully comply with this requirement. Many times, key documents are produced piecemeal late in the proceedings or are not produced at all. If contracting officials take this rulemaking to heart, they will be empowered to comply fully with the COFC’s procedures, even when burdensome. This, in turn, may lead to decisions from the COFC that are based on a more comprehensive understanding of an agency’s procurement process and the basis for its source selection decisions.
* The Council did not issue a formal proposal rule or solicit public comment, because it determined that the rule merely affects internal government operating procedures and thus does not trigger the Office of Federal Procurement Policy requirements in 41 U.S.C. § 1707.