• R.D. Lieberman,Consultant

Boards Lack Jurisdiction to Hear Bid Protests Even if CO Invites It

The following forums have jurisdiction to consider bid protests:

Agency: jurisdiction provided by Executive Order 12979 and Federal

Acquisition Regulation (“FAR”) 33.103.

Government Accountability Office (“GAO”): jurisdiction provided by Competition in

Contracting Act, 31 U.S.C. §3551-3556,

Court of Federal Claims (“COFC”): jurisdiction provided by Tucker Act, 28 U.S.C. §

1491. (The Tucker Act also grants this court jurisdiction to decide any

claim for damages against the United States.)

There are presently only three forums that can adjudicate bid protests. In addition to its bid protest jurisdiction, the Court of Federal Claims has jurisdiction to adjudicate claims under the Contract Disputes Act, 41 U.S.C. §7101-09 (the “CDA”). The CDA also grants the Armed Services Board of Contract Appeals (“ASBCA”) and the Civilian Board of Contract Appeals (“CBCA”) jurisdiction to decide any appeal from the decision of a contracting officer on a claim.

Therefore, the CDA grants offerors a choice of forums (including the Boards) for contract disputes and claims. However, the CDA does not grant either the ASBCA or CBCA jurisdiction to hear bid protests, and neither does any other statute.

The Boards’ lack jurisdiction to hear a bid protest even if the Contracting Officer provides a notice of appeal rights to a disappointed offeror. Spanish Solutions Language Servs., ASBCA No. 62233, Feb. 6, 2020. In that case, the appellant’s appeal stated that the agency had awarded a contract unfairly, and had denied the contract to the protester. The Board noted that there was no contract between Spanish Solutions and the government, and the Board did not possess jurisdiction to entertain the appeal. This was the case even though Spanish Solutions demonstrated that the contracting officer provided it with a written “notice of appeal rights.” The Contracting Officer’s notice regarding appeal rights does not create jurisdiction upon the Board or the court, where such jurisdiction does not otherwise exist.

Takeaway. Bring a bid protest in one of the three forums that has jurisdiction to hear it—and be sure it is timely under the rules of that jurisdiction. Regardless of what a contracting officer tells you, a protest before a Board of Contract Appeals will be dismissed for lack of jurisdiction.

For other helpful suggestions on government contracting, visit:

Richard D. Lieberman’s FAR Consulting & Training at https://www.richarddlieberman.com/, and Mistakes in Government Contracting at https://richarddlieberman.wixsite.com/mistakes.

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The website of Richard Donald Lieberman, a government contracts consultant and retired attorney who is the author of both "The 100 Worst Mistakes in Government Contracting" (with Jason Morgan) and "The 100 Worst Government Mistakes in Government Contracting." Richard Lieberman concentrates on Federal Acquisition Regulation (FAR) consulting and training, including  commercial item contracting (FAR Part 12), compliance with proposal requirements (FAR Part 15 negotiated procurement), sealed bidding (FAR Part 14), compliance with solicitation requirements, contract administration (FAR Part 42), contract modifications and changes (FAR Part 43), subcontracting and flowdown requirements (FAR Part 44), government property (FAR Part 45), quality assurance (FAR Part 46), obtaining invoiced payments owed to contractors,  and other compliance with the FAR. Mr.Lieberman is also involved in numerous community service activities.  See LinkedIn profile at https://www.linkedin.com/in/richard-d-lieberman-3a25257a/.This website and blog are for educational and information purposes only.  Nothing posted on this website constitutes legal advice, which can only be obtained from a qualified attorney. Website Owner/Consultant does not engage in the practice of law and will not provide legal advice or legal services based on competence and standing in the law. Legal filings and other aspects of a legal practice must be performed by an appropriate attorney. Using this website does not establish an attorney-client relationship. Although the author strives to present accurate information, the information provided on this site is not guaranteed to be complete, correct or up-to-date.  The views expressed on this blog are solely those of the author. FAR Consulting & Training, Bethesda, Maryland, Tel. 202-520-5780, rliebermanconsultant@gmail.com

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