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 Bid Protests – Supporting the Protest Legal Team 2
Choosing the Bid Protest Forum • Three possible types of federal bid protests – Agency protests – Government Accountability Office (“GAO”) protests – Court of Federal Claims (“COFC”) protests 3
Choosing the Bid Protest Forum (cont.) • 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 4
Choosing the Bid Protest Forum (cont.) • 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 5
Choosing the Bid Protest Forum (cont.) • 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 6
GAO Bid Protest Overview • 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 7
Frequently Successful Protest Grounds • 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 8
Frequently Successful Protest Grounds 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) 9
Frequently Successful Protest Grounds 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) 10
Corrective Actions • 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 11
GAO Bid Protest Timeliness Rules • 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 12
CICA Stay Rules • 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 13
Stop Work Orders • 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 14
Debriefings: The Basics • 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 15
Debriefings: Purpose • 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 16
Debriefings: Types of Procurement • 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 17
FAR Debriefing Requirements • 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 18
State and Local Bid Protests • 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 19
Colorado State Protests • 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 20
Supporting Your Protest Legal Team • 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 21
Supporting Your Protest Legal Team • 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 22
Common Mistakes/Misunderstanding • 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. 23
Questions? 24
Presenters’ Contact Information Shaun C. Kennedy, Associate Amy M. Siadak, Associate McKenna Long & Aldridge LLP 1400 Wewatta Street, Suite 700 Denver, Colorado 80202 T: (303) 634-4000 F: (303) 634-4400 E: skennedy@mckennalong.com E: asiadak@mckennalong.com 25
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