By Joel Singer, Kyle Fiet, Matthew Solomson & Benjamin Glerum | 61 Am. U. L. Rev. 1013 (2012)

Sidley Austin LLP

Over the past year, the United States Court of Appeals for the Federal Circuit issued a relatively small body of new precedential opinions in the field of government contracts.  Indeed, during 2011, the court issued only twenty-two precedential opinions in this area, seven of which were in the “non-mainstream” context of Winstar and spent nuclear fuel (SNF) litigation.  While it is not possible to draw many broad conclusions from the relatively small number of remaining decisions, there were four main developments that likely will be of interest to practitioners in the field.

First, the number of bid protest decisions published by the Federal Circuit in 2011 continued to dwindle as compared to recent years.  In the past year, the Federal Circuit published only two bid protest decisions, Allied Technology Group, Inc. v. United States and Turner Construction Co. v. United States (Turner III).  In comparison, in 2010, the Federal Circuit published three bid protest decisions, and, in 2009, it published seven bid protest decisions.  This trend is consistent with that of the Comptroller General, where the surge in the number of bid protests filed annually between 2007 and 2010 flattened in 2011.  The reduction in bid protest decisions by the Federal Circuit may be a function of the Government’s recent record of successfully defending its procurement decisions before the Court of Federal Claims (the COFC or Claims Court) and in the Federal Circuit.  Indeed, of the ten bid protest decisions issued by the Federal Circuit in 2009 and 2010, the Federal Circuit’s disposition favored the Government in all but one of these cases.

In keeping with this trend, both of the Federal Circuit’s 2011 bid protest decisions favored the Government.  Both Allied and Turner III involved proceedings that commenced at the COFC following an earlier bid protest before the Government Accountability Office (GAO).  In Allied, the COFC agreed with the decision of the GAO, which denied the earlier bid protest, and the Federal Circuit affirmed.  Conversely, in Turner III, both the COFC and the Federal Circuit effectively overruled the GAO’s earlier decision by ruling that it was unreasonable for the Government to have followed the GAO’s recommendations sustaining the original protest.  Given the deference the COFC and Federal Circuit usually give to GAO recommendations, this outcome is unusual, and it seems unlikely that Turner III will usher in a new era of Federal Circuit reversals of the GAO.

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