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To Contents	Grant Award Protest Before the COFC
By grantmerelief on Monday, March 05, 2001 - 02:43 pm: Can I protest the award of a grant under the Tucker Act before the U. S. Court of Federal Claims? By John Ford on Tuesday, March 06, 2001 - 09:57 am: The Tucker Act only covers contracts, therefore you cannot get to the COFC under that Act. However, the COFC also has the power to hear requests for money that are filed under some statute that specifically entitles the claimant to the money requested. In addition to the COFC, you might be able to go to U.S. district court under the Administrative Procedure Act, depending on the circumstances of the case. In any event, this is a situation where the advice of competent counsel should be sought. By legalease on Tuesday, March 06, 2001 - 11:57 am: grantmerelief: Here is something to read. Give it a try. http://www.attny.com/gci01983.html Read "Protest Options." By Anonymous on Tuesday, March 06, 2001 - 03:21 pm: It is my understanding thast the award of a grant (or cooperative agreement) is not protestable. By John Ford on Wednesday, March 07, 2001 - 04:59 pm: Legalease, interesting site and an interesting article. However, I find its conclusion unconvincing. None of the cases cited dealt with a bid protest. Each case was based on subsection (a) of 28 USC 1491. That provision confers jurisdiction upon the COFC to hear "claims" based upon "any" express or implied in fact contract. Obviously, this covers a broader universe than just procurement contracts. In the cases cited, there was an existing agreement with the government under which the plaintiff was seeking money. On the other hand, the COFC's bid protest jurisdiction is covered by subsection (b) of the statute. While the general rule is that a word used in a statute is presumed to have the same meaning whenever it is used within that statute, it is not clear that rule should be applied in this situation. It has not yet been resolved whether "contract" in (b) is to be given its common meaning, as has been done with (a), or if it is restricted to procurement contracts. To me, there is language in subsection (b) that indicates the latter. While we can disagree on the interpretation of the cases and the statute, I think we can agree that there has been no definitive ruling on this question. By Anonymous2 on Wednesday, March 07, 2001 - 10:10 pm: Dear "Grant", Sorry this is blunt but you really need to discuss this with your attorney. Government employees aren't allowed to advise you how to sue their employer, the US Government (read "The Taxpayers"). One told you he thinks there are no grounds for a suit under the Tucker Act. Please check with your attorney. By Linda Koone on Thursday, March 08, 2001 - 09:48 am: Bob: Check 18 USC 205. By John Ford on Thursday, March 08, 2001 - 12:03 pm: I am glad Legalease provided the site. I learned something from it. I think that is the purpose of this site. We don't all have to agree with what everyone posts, but the posts should stimulate thought and inquiry which will lead to a better understanding of the subjects discussed if we approach the issues with open minds. On a different note, I agree with your assessment regarding the application of 18 USC 205 to this forum. The prohibition is on representation, not voicing unofficial opinions on topics. In some circumstances, government personnel are required to tell people where and when they can sue the government. The appeal rights in a contracting officer's decison under the CDA is one example that comes to mind. By Anonymous on Thursday, March 08, 2001 - 12:06 pm: One key statute concocerning grants "encourages" competition but doesn't mandate it. That's the reason GAO used to decline entaining protets. Nost likely and other body will use the same logic. By bob antonio on Friday, March 09, 2001 - 08:28 pm: In updating the site, I came across this COFC case. COMMONWEALTH OF PENNSYLVANIA DEPARTMENT OF WELFARE v. US, No. 99-386C, Febuary 28, 2001. The link is below. The state claimed existence of a contract under the grant. Here are some excerpts and then the link. "As Plaintiff notes in its brief, to establish a contract under the Tucker Act, a claimant must prove four elements: (1) lack of ambiguity in offer and acceptance; (2) mutuality of intent to contract; (3) sufficient conduct by a government representative having actual authority to bind the government in contract; and (4) consideration. Nevin v. United States, 43 Fed. Cl. 151 (1999), aff’d 232 F.3d 912 (Fed. Cir. 2000)." "In Kentucky ex rel., the court held that a contractual relationship was created under a Title IV-D grant program by the express undertaking of the government in assisting in the preparation of the state plan, in approving the plan, and in developing administrative procedures to determine and implement payments. Id. at 762. In that case, the government disallowed reimbursement of costs associated with payment of fees for court-appointed guardians ad litem in paternity cases involving minor putative fathers. Id. at 758. To support its finding of jurisdiction under a contract theory, the court relied upon State of Texas v. United States, 210 Ct. Cl. 522 (1976), and City of Manassas Park v. United States, 633 F.2d 181 (Ct. Cl. 1980), cert. denied, 449 U.S. 1035, 101 S. Ct. 611, 66 L. Ed.2d 497."

By grantmerelief on Monday, March 05, 2001 - 02:43 pm:

Can I protest the award of a grant under the Tucker Act before the U. S. Court of Federal Claims?

By John Ford on Tuesday, March 06, 2001 - 09:57 am:

The Tucker Act only covers contracts, therefore you cannot get to the COFC under that Act. However, the COFC also has the power to hear requests for money that are filed under some statute that specifically entitles the claimant to the money requested. In addition to the COFC, you might be able to go to U.S. district court under the Administrative Procedure Act, depending on the circumstances of the case. In any event, this is a situation where the advice of competent counsel should be sought.

By legalease on Tuesday, March 06, 2001 - 11:57 am:

grantmerelief:

Here is something to read. Give it a try.

http://www.attny.com/gci01983.html

Read "Protest Options."

By Anonymous on Tuesday, March 06, 2001 - 03:21 pm:

It is my understanding thast the award of a grant (or cooperative agreement) is not protestable.

By John Ford on Wednesday, March 07, 2001 - 04:59 pm:

Legalease, interesting site and an interesting article. However, I find its conclusion unconvincing. None of the cases cited dealt with a bid protest. Each case was based on subsection (a) of 28 USC 1491. That provision confers jurisdiction upon the COFC to hear "claims" based upon "any" express or implied in fact contract. Obviously, this covers a broader universe than just procurement contracts. In the cases cited, there was an existing agreement with the government under which the plaintiff was seeking money.
On the other hand, the COFC's bid protest jurisdiction is covered by subsection (b) of the statute. While the general rule is that a word used in a statute is presumed to have the same meaning whenever it is used within that statute, it is not clear that rule should be applied in this situation. It has not yet been resolved whether "contract" in (b) is to be given its common meaning, as has been done with (a), or if it is restricted to procurement contracts. To me, there is language in subsection (b) that indicates the latter.
While we can disagree on the interpretation of the cases and the statute, I think we can agree that there has been no definitive ruling on this question.

By Anonymous2 on Wednesday, March 07, 2001 - 10:10 pm:

Dear "Grant",
Sorry this is blunt but you really need to discuss this with your attorney. Government employees aren't allowed to advise you how to sue their employer, the US Government (read "The Taxpayers"). One told you he thinks there are no grounds for a suit under the Tucker Act. Please check with your attorney.

By Linda Koone on Thursday, March 08, 2001 - 09:48 am:

Bob:

Check 18 USC 205.

By John Ford on Thursday, March 08, 2001 - 12:03 pm:

I am glad Legalease provided the site. I learned something from it. I think that is the purpose of this site. We don't all have to agree with what everyone posts, but the posts should stimulate thought and inquiry which will lead to a better understanding of the subjects discussed if we approach the issues with open minds.
On a different note, I agree with your assessment regarding the application of 18 USC 205 to this forum. The prohibition is on representation, not voicing unofficial opinions on topics. In some circumstances, government personnel are required to tell people where and when they can sue the government. The appeal rights in a contracting officer's decison under the CDA is one example that comes to mind.

By Anonymous on Thursday, March 08, 2001 - 12:06 pm:

One key statute concocerning grants "encourages" competition but doesn't mandate it. That's the reason GAO used to decline entaining protets. Nost likely and other body will use the same logic.

By bob antonio on Friday, March 09, 2001 - 08:28 pm:

In updating the site, I came across this COFC case. COMMONWEALTH OF PENNSYLVANIA DEPARTMENT OF WELFARE v. US, No. 99-386C, Febuary 28, 2001. The link is below. The state claimed existence of a contract under the grant. Here are some excerpts and then the link.

"As Plaintiff notes in its brief, to establish a contract under the Tucker Act, a claimant must prove four elements: (1) lack of ambiguity in offer and acceptance; (2) mutuality of intent to contract; (3) sufficient conduct by a government representative having actual authority to bind the government in contract; and (4) consideration. Nevin v. United States, 43 Fed. Cl. 151 (1999), aff’d 232 F.3d 912 (Fed. Cir. 2000)."

"In Kentucky ex rel., the court held that a contractual relationship was created under a Title IV-D grant program by the express undertaking of the government in assisting in
the preparation of the state plan, in approving the plan, and in developing administrative
procedures to determine and implement payments. Id. at 762. In that case, the government disallowed reimbursement of costs associated with payment of fees for court-appointed guardians ad litem in paternity cases involving minor putative fathers. Id. at 758.

To support its finding of jurisdiction under a contract theory, the court relied upon State of Texas v. United States, 210 Ct. Cl. 522 (1976), and City of Manassas Park v. United States, 633 F.2d 181 (Ct. Cl. 1980), cert. denied, 449 U.S. 1035, 101 S. Ct. 611, 66 L. Ed.2d 497."