Protest of Contract Awards
It is well settled that, when the government encourages a
submit a bid upon a prospective government contract, there is an
condition that the government will honestly consider that bid.
Continental Business Enterprises, Inc. v. United States, 452 F.2d
1019 (Ct. Cl. 1971); Keco Industries, Inc. v. United States, 428
1233, 1236 (Ct. Cl. 1970) (Keco I). The bidder has the option of
pursuing either of two judicial avenues when a breach occurs.
relief is sought before the contract is awarded, the bidder may
injunctive relief under 28 U.S.C. § 1491(a)(3) in the Court of
Federal Claims. La Strada Inn, Inc. v. United States, 12 Cl. Ct.
113 (1987). Second, if relief is sought after the contract is
the bidder may seek injunctive relief in the district court.
Laboratories, Inc. v. Schaffer, 424 F.2d 859 (D.C. Cir. 1970). |
To establish that the government breached its implied duty to
all bids fairly and honestly, a plaintiff must show that the
government's actions were arbitrary and capricious. Keco
Inc. v. United States, 492 F.2d 1200 (Ct. Cl. 1974) (Keco II); Crux
Computer v. United States, 24 Cl. Ct. 223, 225 (1991). This is a
particularly difficult standard to meet because there is a strong
presumption that government officials act properly and in good
Kalvar Corp. v. United States; 543 F.2d 1298 (Ct. Cl. 1976), cert.
denied, 434 U.S. 830 (1977); Eagle Construction Corp. v. United
4 Cl. Ct. 470, 479 (1984).
Judicial review of the government's action in bid protest
not a de novo proceeding; rather, the scope of review is limited to
administrative record. The proper standard of review is whether the
agency action was arbitrary, capricious, an abuse of discretion, or
otherwise not in accordance with law based on the administrative
See, e.g., Prineville Sawmill Co., Inc. v. United States, 859 F.2d
909 (Fed. Cir. 1988); Scanwell Laboratories v. Schaffer, 424 F.2d
(D.C. Cir. 1970). In such circumstances, a court should not
its judgment for that of the agency. Magnavox Electronic Systems
United States, 26 Cl. Ct. 1373, 1380 (1992), citing Motor Vehicle
Manufacturers Assoc. of U.S. v. State Farm Mutual Auto. Ins. Co.,
U.S. 29, 43 (1983); RADVA Corp. v. United States, 17 Cl. Ct. 812,
(1989), aff'd, 914 F.2d 271 (Fed. Cir. 1990).
This limited scope of review is in accord with the fundamental
principle that judicial review of discretionary agency action is
novo, but is limited to review of the administrative record.
Power & Light v. Lorion, 470 U.S. 729, 743 (1985); Camp v. Pitts,
U.S. 138, 142 (1973); Citizens to Preserve Overton Park, Inc. v.
401 U.S. 402, 420 (1971). That record consists of the materials and
files that were before the agency at the time the decision was
materials adduced through discovery by opponents of the agency's
or de novo proceedings in the court. Florida Power & Light, 470
743; Camp v. Pitts, 411 U.S. at 142; Overton Park, 401 U.S. at 420.
The only exceptions to this principle apply in the unusual
which a court determines that the administrative record presented
agency does not provide an adequate basis for judicial review. Camp
Pitts, 411 U.S. at 143; Overton Park, 401 U.S. at 420. However,
such a case, the remedy is to obtain from the agency, either
affidavits or testimony, such additional explanations of the
the agency decision as may prove necessary, Camp v. Pitts, 411 U.S.
142-43, or to remand to the agency for amplification. Courts
grant protective orders in record review cases precluding the
discovery. Saratoga Development Corp. v. United States, 21 F.3d
(D.C. Cir. 1994).
The government may not be compelled to perform a contract
specifically. Malone v. Bowdoin, 369 U.S. 643 (1962); Larson v.
& Foreign Commerce Corp., 337 U.S. 682, 696-705 (1949); Sharp v.
Weinberger, 798 F.2d 1521 (D.C. Cir. 1986). Consistent with this
doctrine, the authority to grant injunctive relief to a
bidder upon a government contract does not include authority to
the government to award a contract to the particular bidder.
Laboratories v. Schaeffer, 424 F.2d at 864; see Parcel 49C Ltd.
Partnership v. United States, 31 F.3d 1147, 1153-54 (Fed. Cir.
(government enjoined from canceling a solicitation for an improper
If the implied duty to consider a bid fairly is breached, in
addition to seeking injunctive relief, a bidder may seek damages
the claimant was put to needless expenses in preparing its bid.
Products Co. v. United States, 135 Ct. Cl. 63, 69 (1956). In the
district court, recovery of bid preparation costs would be limited
the $10,000 limit of the Little Tucker Act, 28 U.S.C. § 1346.
[cited in USAM 4-4.420]