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- Agenda
Navigating Bid Protest Landscape Shaun C. Kennedy Amy M. Siadak - - PowerPoint PPT Presentation
Navigating Bid Protest Landscape Shaun C. Kennedy Amy M. Siadak - - PowerPoint PPT Presentation
Navigating Bid Protest Landscape Shaun C. Kennedy Amy M. Siadak September 18, 2014 mckennalong.com mckennalong.com Overview Agenda Choosing Federal Bid Protest Forum GAO and COFC Protests Debriefings State and Local
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- Three possible types of federal bid protests
– Agency protests – Government Accountability Office (“GAO”) protests – Court of Federal Claims (“COFC”) protests
Choosing the Bid Protest Forum
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- Agency Bid Protests
– Number of agency protests is statistically unknown – Conducted quickly, usually decided within 35 days – One pleading/filing for protest (i.e., generally less expensive) – No discovery of evaluation documents or proposals – No outside review of protest or underlying facts – If you lose, may protest some grounds at the GAO
Choosing the Bid Protest Forum (cont.)
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- GAO Bid Protests
– About 2,400 GAO protests in FY 2013 – Conducted quickly, must be decided within 100 calendar days – Automatic CICA stay of contract award or performance – Counsel permitted access to evaluation documents and proposals – Adjudicated by independent GAO attorneys – Well established GAO case law – If you lose, may be able to protest at COFC
Choosing the Bid Protest Forum (cont.)
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- COFC Bid Protests
– Approximately 85 COFC protests in FY 2013 – Duration varies; from 1 to 6 months or more – No automatic CICA stay of contract award or performance, must provide right to injunctive relief – Counsel permitted access to agency’s administrative record – Adjudicated by COFC Judges with developing COFC case law – Narrow jurisdiction for task order protests – If you lose, may appeal to the U.S. Court of Appeals for the Federal Circuit
Choosing the Bid Protest Forum (cont.)
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- Solicitation Issued
- Proposals Submitted by Offerors
- Notice of Award
- Debriefing
- Timely Protest Filed
- CICA Stay
- Awardee Intervention
- Agency Report and Comments
- Supplemental Protest Filed
- GAO Decision within 100 Calendar Days
GAO Bid Protest Overview
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- Frequently, protester is not aware of successful protest
ground at time of filing initial protest
- Use initial protest to justify gathering as many potentially
relevant agency documents as possible
- During 10-day Comment period, attorneys will scrutinize
record for additional protest grounds
- May use supplemental protests to gather more information
Frequently Successful Protest Grounds
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GAO: Protests sustained between Apr. 1, 2012 - Mar. 31, 2014
– Departure from solicitations’ evaluation scheme (19) – Inadequate documentation or explanation (14) – Unreasonable technical evaluation (11) – Flawed discussions (7) – Unequal treatment (6) – Unreasonable price evaluation (6) – Flawed best value analysis (4)
Frequently Successful Protest Grounds
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COFC: Protests sustained between Apr. 1, 2012 - Mar. 31, 2014
– Inadequate documentation or explanation (11) – Departure from evaluation scheme (8) – Corrective action unwarranted (5) – Irrational technical evaluation (4) – Improper rejection of “late” proposal (4) – Flawed OCI analysis (2) – Irrational past performance evaluation (2) – Defective solicitation (2)
Frequently Successful Protest Grounds
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- Either in response to the bid protest or GAO decision
- Agencies took more than 900 corrective actions in FY 2013,
equaling a 45% effectiveness rate
- Agencies have broad discretion to fashion corrective action
needed to continue acquisition
– Can be limited to address problems
- Limit on proposal revisions
- Limit on re-evaluation of offers
– Corrective action may be broader than protest allegations
Corrective Actions
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- Strictly enforce – protest may be dismissed
- Often cannot wait to file protest until contract award
decisions is announced
- Timeliness rules set forth in 4 C.F.R. § 21.2
– Solicitation improprieties – General “ten-day” rule – Denial of agency protest – Required debriefing
- With complex timeliness rules, raise possible protest
concerns immediately
GAO Bid Protest Timeliness Rules
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- In accordance with 31 U.S.C. § 3553, the agency must
suspend contract performance if procuring agency receives notice that protest is filed:
– Within 10 days of contract award – Within 5 days of required debriefing
- Timely filing at GAO is not sufficient; agency must receive
notice from GAO
CICA Stay Rules
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- If a contract you were awarded is stayed, you should
receive a stop work order
– Stop all work, if feasible – Minimize costs – Submit equitable adjustment for any increased costs or time
Stop Work Orders
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- A good debriefing enhances the integrity and legitimacy of
the acquisition process
- However, a good debriefing is difficult to conduct
– Debriefings necessarily involve incomplete information – Often occurs at an emotionally charged time (i.e., post-award) – Evaluation findings are inherently subjective
- Preparing for a good debriefing is a CRITICAL step in
successfully pursuing a bid protest
Debriefings: The Basics
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- Allow offerors to better understand why their proposal was
not selected for award
- Help offerors prepare better proposals in the future
- Avoid bid protests filed based on inadequate or incorrect
information
- Gain information to evaluate and formulate potential bases
for bid protest
- NOT the time to argue for award of the contract
Debriefings: Purpose
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- Debriefings only required for “Competitive Proposals”
- Debriefings required for FAR Part 15 acquisitions
- Debriefings may be required for:
– FAR Part 12 – Commercial Items Acquisitions – FAR Part 13 – Simplified Acquisitions
- Debriefings are not required for:
– FAR Subpart 8.4 – Federal Supply Schedule Acquisitions – FAR Subpart 36.6 – Architect Engineer (A/E) Acquisitions – FAR 35.016 – Broad Agency Announcements
Debriefings: Types of Procurement
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- Time requirements
– Written request within 3 days – Should be held within 5 days of request – Deadline starts with first offered debriefing date
- Debriefing shall include:
– Evaluation of significant elements of proposal – Summary of rationale for elimination/exclusion – Reasonable responses to relevant questions
FAR Debriefing Requirements
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- Generally follow the same basic principles in federal
protests
- Less structure, precedent, and formality
- Colorado bid protests governed by the Colorado
Procurement Code and Rules
- Local bid protests vary significantly between jurisdictions
– Read solicitation carefully for protest rights – Use federal and state rules to fill in gaps
- Consider using business/government affairs to supplement
legal approach
State and Local Bid Protests
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- Broad potential protest grounds
– Must be “aggrieved in connection with the solicitation or award of a contract”
- Must submit protest within 7 working days
– Same for protests of the solicitation
- No mandatory debriefing requirement
- Request proposals and source selection materials through
Colorado Open Records Act
- Protest to the Head of the Purchasing Agency
– Stay for procurements with competitive sealed proposals
- Appeal to DPA and/or District Court
Colorado State Protests
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- Understand the basics of bid protests
– Timeliness and stay rules – Debriefings – Protective order “Cone of Silence” – Possible protest grounds
- Identify acquisition as candidate for possible protest as
soon as possible
- Maximize lawyers time to work for you
- Explain your product and business to lawyers
Supporting Your Protest Legal Team
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- Provide key documents ASAP!
– Solicitation – Proposal – Communications with agency – Award notice – Debriefing materials
- Make appropriate company personnel available to answer
questions
- Explain all concerns about conduct of acquisition
- Help identify consultants
Supporting Your Protest Legal Team
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- I should wait to see whether I win before protesting an incorrect
solicitation provision.
- I should not request a debriefing until I have reason to suspect the
agency did something wrong.
- I should use my debriefing to let the contracting officer know exactly
what I think of his/her decision and convince his/her to change the award.
- My protest will succeed because I will convince GAO or the COFC
that I submitted the better proposal.
- I should not file a protest because my customer will be upset, which
will negatively impact my future business.
Common Mistakes/Misunderstanding
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Questions?
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