2

177562212

GAO Bid ProtestsFor Contractor Personnel

Breakout Session #406

Name: Richard B. Oliver, Esq.roliver@mckennalong.com

John G. Horan, Esq.jhoran@mckennalong.com

Date: Tuesday, July 20, 2010

Time: 10:30-11:15 a.m.

3

17756221

Introduction

• Goal of becoming familiar with the GAO bid protest process

• In view of the GAO Protective Order “Cone of Silence” requirements, how to successfully support your bid protest team

4

17756221

Agenda

• GAO bid protest process overview

• Timeliness rules

• Stay rules

• Preparing for a debriefing

• Protective orders

• Frequently successful protest grounds

• Corrective actions

• Supporting your protest legal team

5

17756221

GAO Bid Protest Overview

• Notice of award

• Debriefing

• Timely protest

• CICA stay

• Awardee intervention

• Motions to dismiss

• Protective order

6

17756221

GAO Bid Protest Overview (cont.)

• Agency report within 30 days

• Comments and supplemental protests within 10 days

• Supplemental report and comments

• Hearings

• Decision within 100 days

7

17756221

GAO Bid Protest Timeliness Rules• 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 informal protest

– Required debriefing

8

17756221

GAO Bid Protest Timeliness Rules (cont.)

• Special areas of concern

– Solicitation modifications

– Elimination from competitive range

– Procurement Integrity Act violations

– Organizational Conflicts of Interest

– Corrective actions

• With complex timeliness rules, raise possible protest concerns immediately

9

17756221

CICA Stay Rules

• 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

10

17756221

CICA Stay Rules (cont.)

• Required debriefings

– Time requirements

• Written request within 3 days

• Should be held within 5 days of request

• Deadline starts with first offered debriefing date

– Competitive proposals

• FAR 15 acquisitions

• Not required for FAR 8.4 FSS procurements

• IDIQ task order >$10 Million ???

• If debriefing not required, must file and agency receive notice within 10 days of contract award to impose stay

11

17756221

CICA Stay Rules (cont.)

• Stay overrides

– Agency may override contract suspension if the head of the contracting activity finds:

• Contract performance will be in the best interest of the U.S.; or

• Urgent and compelling circumstances that significantly affect the interest of the U.S. will not permit waiting for GAO’s decision

– Agency decision to override stay may be challenged at COFC; GAO does not consider such challenges

12

17756221

Preparing For A Debriefing

• Purpose for debriefing

• Offeror’s goals for debriefing

• FAR debriefing rules

• Planning for debriefing

13

17756221

Preparing For A Debriefing (cont.)

• Purpose for debriefing

– Allow offerors to better understand why their proposal was not chosen

– Help offerors prepare better proposals in future

– Avoid protests filed based upon inadequate information

– Gain information to evaluate and formulate possible protest

– Counsel for offeror often does not attend

14

17756221

Preparing For A Debriefing (cont.)

• Goals for disappointed offeror at a debriefing

– Not the time to argue for your proposal – Agency has already made its award decision

– Learn as much as possible about the agency’s evaluation of your proposal and its best value decision

– Debriefing statements generally are not considered admissions by GAO

15

17756221

Preparing For A Debriefing (cont.)

• FAR debriefing rules

– Pre-award debriefings - eliminated from competitive range or excluded from competition - FAR 15.505

– Post-award debriefings – FAR 15.506

• In person, by telephone or written

• Contracting Officer chairs debriefing

16

17756221

Preparing For A Debriefing (cont.)

• Post-award debriefings – FAR 15.506 (cont.)

– Debriefing includes

• Significant weaknesses or deficiencies

• Overall evaluated cost/price and technical rating of awardee and debriefed offeror

• Summary of rationale for award

• Reasonable responses to relevant questions

17

17756221

Preparing For A Debriefing (cont.)

• Post-award debriefings – FAR 15.506 (cont.)

– Debriefings do not include

• Point-by-point comparison of proposals

• Information exempt from disclosure under FOIA

– Trade secrets

– Manufacturing processes and techniques

– Commercial and financial information

– Names of past performance references

18

17756221

Preparing For A Debriefing (cont.)

• Planning for a debriefing

– Request available documents from agency

– Appoint debriefing team leader to guide discussion

– Enlist key members of proposal team

– Review proposal

– Consider evaluation findings and ratings

19

17756221

Preparing For A Debriefing (cont.)

• Planning for a debriefing (cont.)

– Perform appropriate price/cost calculations

– Compare identified weaknesses and deficiencies with discussion topics

– Develop series of questions, especially about the evaluation of your proposal

– Review goals of debriefing

– Be professional and courteous

20

17756221

Protective Orders (“PO”)

• Purpose of PO – allows procuring agency to disclose proposals, evaluation documents, source selection decisions and other competition sensitive information to representatives of parties admitted under PO

• GAO issues PO for virtually all protests

• GAO uses standard 3 page, 9 paragraph PO

• GAO has 45 page PO Guide on website

21

17756221

Protective Orders (“PO”) (cont.)

• Individuals must submit applications to be admitted under PO and other parties may object

• PO defines what is protected material

• Limits access to protected material to GAO, agency personnel and people admitted under PO

• Establishes procedure for creating redacted versions of documents

22

17756221

Protective Orders (“PO”) (cont.)

• Requires protected material to be safeguarded

• Allows electronic mail and facsimiles to be used to send protected documents

• Requires disposal of protected material within 60 days after protest is concluded

• Permits imposition of sanctions for violation

– Dismissal of protest

– Referral to bar association

– Restrict practice at GAO

23

17756221

Protective Orders (“PO”) (cont.)

• Who can be admitted

– Not involved in competitive decision-making

– Not participate or advice where use of protected material could provide competitive advantage

• Marketing or advertising strategies

• Product research and development or design

• Competitive structuring and composition of proposal

– Outside Counsel

– In-House Counsel

– Consultant

24

17756221

Frequently Successful Protest Grounds

• Unreasonable Technical Evaluation

• Failure to evaluate in accordance with solicitation’s terms and evaluation criteria

– Weighting of evaluation factors

– Unannounced evaluation factor

– Relaxation of solicitation requirement

– Page limits and other instructions

• Irrational Past Performance Evaluations

– Relevance

– Information too close at hand

25

17756221

Frequently Successful Protest Grounds (cont.)

• Sole source contracts

• Cost realism

• Price reasonableness and realism

• Organizational Conflicts of Interest

– Unequal access to information

– Biased ground rules

– Impaired objectivity

– Subsidiaries, affiliates and subcontractors

– Proposed DFARS OCI provisions

26

17756221

Frequently Successful Protest Grounds (cont.)

• Flawed discussions

– Lack of meaningful discussions

– Misleading discussions

– Unequal discussions

• Disparate treatment of offerors

• Best value determination

– Unreasonable trade-off

– Failure to document rationale

– Based on inaccurate findings

27

17756221

Corrective Actions

• Either in response to protest or GAO decision

• Agencies took more than 800 corrective actions in FY 2009, 45 % effectiveness rate

• Agencies have broad discretion to fashion corrective action needed to continue acquisition

– Can be limited to address problem

• Limit on proposal revisions

• Limit re-evaluation

– Can be broader than protest issue

28

17756221

Corrective Actions (cont.)

• Protest of corrective action must be timely

• If discussions are re-opened or proposal revisions allowed

– Unequal disclosure of competitive information

• Awardee’s name and price disclosed

• Often no meaningful remedy

– Awkward for initial awardee to protest proposed corrective action

• Can protest new award decision

29

17756221

Supporting Your Protest Legal Team

• Understand the basics of bid protests

– Timeliness and stay rules

– Debriefings

– Possible protest grounds

• Identify acquisition as candidate for possible protest as soon as possible

• Maximize lawyers time to work

• Explain your product and business to lawyers

30

17756221

Supporting Your Protest Legal Team (cont.)

• Provide key documents

– Solicitation

– Proposal

– Communications with agency

– Award notice

– Debriefing materials

31

17756221

Supporting Your Protest Legal Team (cont.)

• Make appropriate company personnel available to answer questions

• Explain all concerns about conduct of acquisition

• Prepare factual rebuttals, citing proposal

• Help identify consultants

32

17756221

Questions?

33

17756221

34

17756221