Today, Pillsbury attorneys Joël Van Over and Alex Ginsberg published their advisory titled Corrective Action Catch 22: Court of Federal Claims Holds Agency Action Must Be Rational Even If GAO Protest Decision Was Not. The Advisory discusses the U.S. Court of Federal Claims’ July 15, 2014 decision in RUSH Construction, Inc. v. United States.
This decision reflects the unusual circumstance in which the court effectively sat in appellate review of an earlier bid protest decision by the Government Accountability Office (GAO) after the U.S. Army Corps of Engineers followed GAO’s recommendation in that decision. The court ultimately overruled GAO when it found that it was arbitrary and capricious for the agency to follow GAO’s recommendation. In so doing, the court cited numerous shortcomings in GAO’s reasoning and its reliance on inapposite case law. The RUSH decision, authored by the Court of Federal Claims’ new chief judge, may foretell greater judicial scrutiny of agency corrective action and a shift at the court away from deference to GAO’s bid protest recommendations.