On November 8, 2019, Amazon filed a bid protest pre-filing notice with the Court of Federal Claims (“COFC”) indicating its intent to protest the Department of Defense’s (“DoD”) award of the Joint Enterprise Defense Infrastructure (“JEDI”) contract to Microsoft. Amazon’s decision to move forward with a protest does not come as a surprise to most practitioners who have been following this hotly contested procurement since its inception. For government contractors, if you are protesting an award, make certain you do not overlook important procedural requirements that could delay initial processing of a case before the COFC.
The COFC’s protest procedures differ, in part, from the Government Accountability Office’s (“GAO”) bid protest regulations, in that the COFC requires protester’s counsel to provide at least 24-hour advance notice of filing a protest case to:
1. the Department of Justice (“DoJ”);
2. the COFC clerk;
3. the procuring agency’s contracting officer; and
4. the apparently successful bidder/offeror (in this case Microsoft).
See Appendix C of the Rules of the Court of Federal Claims (“RCFC”). The pre-filing notice must state, inter alia, whether the protester contemplates requesting temporary or preliminary injunctive relief and whether the protester has discussed the same with DoJ counsel. Id. A protest will not be dismissed for failure to file a pre-filing notice, but if a protester overlooks this procedural requirement, a delay in the initial processing of the case is highly likely to result. For this reason, it is imperative that contractors and their counsel understand the nuances of protesting before the COFC.
Amazon’s decision to file its protest before the COFC, instead of the GAO, may stem directly from Amazon’s public claims that the evaluation process suffered from “unmistakable bias,” insinuating that President Trump and some members of Congress may have interfered with?or attempted to sway?the JEDI source selection process. To fully support such allegations of bias, Amazon will need fulsome, documentary evidence demonstrating direct political influence on the JEDI source selection team. Amazon is likely to receive more documentary evidence in a protest before the COFC. Generally, GAO requires the government to provide only documents relevant to specific arguments raised in the protest. However, at the COFC, the government is required to produce a full administrative record, which includes an expansive list of core documents (i.e., all correspondence between the agency and the protester, awardee, or other interested parties relating to the procurement). Amazon’s decision to protest before the COFC will ensure a broader scope of discovery related to its claims, including those relative to improper political influence.