The Aerospace & Defense Forum Orange County Chapter The Evolving State of Federal Contractor Bid Protests Richard B. Oliver Partner Pillsbury Winthrop Shaw Pittman LLP December 7, 2017
The Evolving State of Federal Contractor Bid Protests 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 1 |
I. INTRODUCTION Concern for improving and streamlining federal o acquisition process is high Bid protests are viewed as a prime source of o acquisition delay Bid protests are being unfairly blamed o • 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 2 |
II. BID PROTEST OVERVIEW A. Choosing The Bid Protest Forum B. GAO Bid Protest Overview C. GAO Timeliness Rules D. CICA Stay Rules 3 |
A. Choosing The Bid Protest Forum • Agency protests • GAO protests • COFC protests 4 |
Choosing The Bid Protest Forum (cont.) Agency Protests o • 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 5 |
Choosing The Bid Protest Forum (cont.) GAO Protests o • About 2,600 G AO 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 6 |
Choosing The Bid Protest Forum (cont.) COFC Bid Protests o • 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 7 |
B. GAO Bid Protest Overview • Notice of Award • Debriefing • Timely protest • CICA stay • Awardee intervention • Motions to dismiss • Protective order 8 |
GAO Bid Protest Overview (cont.) Agency report within 30 days o Comments and supplemental protests within 10 days o Supplemental report and comments o Hearings o Decision within 100 days o 9 |
C. GAO Bid Protest Timeliness Rules Strictly enforced – protest is dismissed o • Calendar days • GAO office hours Often cannot wait to file protest until contract award decision o is announced Timeliness rules listed in 4 C.F.R. 21.2 o • Solicitation improprieties • General ten-day rule • Denial of agency protest, including formal protest • Required debriefing With complex timeliness rules, raise possible protest o concerns immediately 10 |
D. CICA Stay Rules Per 31 U.S.C.§3553, agency must suspend o 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 o timely notice from GAO 11 |
III. RECENT STATUTORY CHANGES GAO Civilian Task and Delivery Order Protest o Authority Act of 2016 FY 2017 NDAA o • GAO jurisdiction for $10M civilian agency task orders made permanent • GAO jurisdiction level for DoD task order protests increased to $25M 12 |
RECENT STATUTORY CHANGES (cont.) o FY 2018 NDAA (Conference) • Enhanced Debriefings For awards >$100M or small business awards >$10M o Receive redacted source selection award o 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 o agency responses 13 |
RECENT STATUTORY CHANGES (cont.) Pilot Program For Protester Payment of o 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 14 |
IV. GAO FY 2017 STATISTICS 15 |
V. Section 809 Panel • 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 o Impose page limits on protests, agency legal memoranda, and comments o Give the contracting officer exclusive authority to override the automatic CICA o stay of performance Limit protest remedies to bid & proposal costs and reasonable attorneys’ fees o Eliminate GAO and COFC jurisdiction over bid protests in favor of a new o forum 16 |
VI. Other Protest Developments • Latvian Connection suspension • GAO Electronic Protest Docketing System Provides immediate notice to agency o $350 protest fee o 17 |
VII. Conclusion • 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 18 |
Questions Richard B. Oliver Richard.oliver@pillsburylaw.com 19 |
Recommend
More recommend
