The Aerospace & Defense Forum Orange County Chapter The - - PowerPoint PPT Presentation

The Aerospace & Defense Forum The Evolving State of Federal Contractor Bid Protests

Richard B. Oliver Partner Pillsbury Winthrop Shaw Pittman LLP Orange County Chapter

December 7, 2017

The Evolving State of Federal Contractor Bid Protests

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I. Introduction II. Bid Protest Overview

• III. Recent Statutory Changes
• IV. FY 2017 GAO Decision Statistics
• V. Panel 809 Considerations
• VI. Other Recent Developments
• VII. Conclusion

I. INTRODUCTION

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• Concern for improving and streamlining federal

acquisition process is high

• Bid protests are viewed as a prime source of

acquisition delay

• Bid protests are being unfairly blamed
• About 1/10 of 1% of contracting actions are protested
• GAO protests last 100 days or less
• Almost ½ of protests are successful
• Protests and the threat of a protest provide accountability

for acquisition system

II. BID PROTEST OVERVIEW

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• A. Choosing The Bid Protest Forum
• B. GAO Bid Protest Overview
• C. GAO Timeliness Rules
• D. CICA Stay Rules

• A. Choosing The Bid Protest Forum

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• Agency protests
• GAO protests
• COFC protests

Choosing The Bid Protest Forum

(cont.)

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• Agency Protests
• Number of agency protests is unknown
• Quick, usually decided within 35 days
• Regulatory stay of contract award or performance
• One pleading, so less expensive
• Less objectionable to customer
• Useful where sustain may be in agency’s interests
• No discovery of evaluation documents or proposals
• No outside review of protest or underlying facts
• If lose, can protest same grounds to GAO

Choosing The Bid Protest Forum

(cont.)

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• GAO Protests
• About 2,600 GAO protests in FY 2017
• Decided within 100 calendar days
• Automatic CICA stay of contract award or performance
• Relatively inexpensive, may only be two pleadings
• Counsel access to evaluation documents and proposals
• Heard by independent GAO attorney
• Well established GAO case law
• Sole jurisdiction for task order protests except FSS orders
• If lose, usually can still protest to COFC

Choosing The Bid Protest Forum

(cont.)

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• COFC Bid Protests
• Estimated 100 COFC protests in FY 2017
• Duration may vary from 1 to 6 months or more
• No automatic CICA stay of contract award or performance
• Multiple pleadings to file protest and expect motions to dismiss
• Counsel has access to administrative record
• Heard by COFC Judge with still developing COFC case law
• Narrow jurisdiction for task order protests

• B. GAO Bid Protest Overview

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• Notice of Award
• Debriefing
• Timely protest
• CICA stay
• Awardee intervention
• Motions to dismiss
• Protective order

GAO Bid Protest Overview (cont.)

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• Agency report within 30 days
• Comments and supplemental protests within 10 days
• Supplemental report and comments
• Hearings
• Decision within 100 days

• C. GAO Bid Protest Timeliness Rules

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• Strictly enforced – protest is dismissed
• Calendar days
• GAO office hours
• Often cannot wait to file protest until contract award decision

is announced

• Timeliness rules listed in 4 C.F.R. 21.2
• Solicitation improprieties
• General ten-day rule
• Denial of agency protest, including formal protest
• Required debriefing
• With complex timeliness rules, raise possible protest

concerns immediately

• D. CICA Stay Rules

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• Per 31 U.S.C.§3553, 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
• Filing at GAO is not sufficient, agency must receive

timely notice from GAO

• III. RECENT STATUTORY CHANGES

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• GAO Civilian Task and Delivery Order Protest

Authority Act of 2016

• FY 2017 NDAA
• GAO jurisdiction for $10M civilian agency task orders

made permanent

• GAO jurisdiction level for DoD task order protests

increased to $25M

RECENT STATUTORY CHANGES

(cont.)

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• FY 2018 NDAA (Conference)
• Enhanced Debriefings
• For awards >$100M or small business awards >$10M
• Receive redacted source selection award

determination

• After debriefing, Offeror has two business days to

submit questions

• Agency response due within five business days
• CICA stay five-day period commences with delivery of

agency responses

RECENT STATUTORY CHANGES

(cont.)

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• Pilot Program For Protester Payment of

Government Costs

• Program from 10/1/19 – 9/30/22
• Contractor must have $250M in annual revenues
• Must be denied by GAO Decision
• No definition of Government costs

• IV. GAO FY 2017 STATISTICS

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• V. Section 809 Panel

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• Authorized by Congress in FY 2016 NDAA to prepare recommendations

to streamline the acquisition process

• Considering several out-of-the-box proposals on restructuring the bid

protest system

• Reduce the GAO bid protest decision period from 100 days to 45 days
• Impose page limits on protests, agency legal memoranda, and comments
• Give the contracting officer exclusive authority to override the automatic CICA

stay of performance

• Limit protest remedies to bid & proposal costs and reasonable attorneys’ fees
• Eliminate GAO and COFC jurisdiction over bid protests in favor of a new

forum

• VI. Other Protest Developments

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• Latvian Connection suspension
• GAO Electronic Protest Docketing System
• Provides immediate notice to agency
• $350 protest fee

• VII. Conclusion

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• Bid protest legislative activity during last two years

probably will continue

• Section 809 Panel’s bid protest recommendations will

probably be adopted

• We will need to pay attention to future developments

Questions

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Richard B. Oliver Richard.oliver@pillsburylaw.com