8.5.09 summit - freling - protests and claims presentations
DESCRIPTION
Protests and Claimes - Covington & BurlingTRANSCRIPT
Fundamentals of Government Contract Claims and Protests
Scott A. Freling
August 5, 2009
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Overview
• Differences Between Protests and Claims
• Protests – Where to protest – When to protest– Protest procedures– Examples of protest issues and remedies– Strategic considerations
• Claims – Basic statutory requirements– Examples of claims– Subcontract claims– Alternative Dispute Resolution
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What is the difference between a Protest and a Claim?
• PROTEST – a complaint about the Government’s handling of the procurement process up to and including award– Pre-award (complaints about the rules of the game)– Post-award (complaints about the award decision and how the
game was played)
• CLAIM – a complaint by a party to an existing contract against another party to the contract– Contractor Claims vs. Government– Government Claims vs. Contractors
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Why do these differences matter?
• Strict timing rules apply, especially to protests.
• Special procedures apply, especially to claims.
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Examples of Grounds for Claims and Protests • HHS releases an RFP that says that any party awarded a
contract for vaccine will have to produce it in the United States.
• Manufacturer’s contract is terminated by DoD for default because of late deliveries, and DoD announces it will reprocure the item from another source.
• VA awards a contract to a competitor that you know lacks the capacity to do the job right.
• DoD instructs contractor to make changes to its product under fixed-price contract that will greatly increase contractor’s costs of performance.
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Protests
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Protests – Where to Protest?• Agency
– Contracting Officer– Higher Level Intra-Agency Authority
• in the first instance OR as an appeal of the CO’s adverse decision
• Government Accountability Office (GAO)
• U.S. Court of Federal Claims
• Small Business Administration (SBA)– protests of small business status in set-asides
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Protests – Who and When?
• Who can Protest?– Must be an “Interested Party” (i.e., an actual or
prospective offeror whose direct economic interest would be affected by the award of a contract or by the failure to award the contract)
– Subcontractors may not protest
• When to Protest?– It depends on (a) the type of protest and (b) the protest
forum– Deadlines are strictly enforced – a trap for the unwary!
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Protests – Basic Timing Requirements
• Agency or GAO– Pre-award protests – before next offers are due– Post-award protests – if no debriefing, 10 days after
notice• Debriefing request – 3 days after notice• Protest filing – 5 days after a “required” debriefing to
invoke automatic stay– Protest filing still timely if 10 days after debriefing
• Exclusion from competitive range – similar to award notice
– Other Issues – within 10 days of knowledge• Intra-agency appeal of the CO’s adverse decision does
not extend the time for appeal.
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Protests – Basic Timing Requirements
• Court of Federal Claims– Court generally follows GAO rule as to pre-award
protests.– Equitable timing requirements – court will assess
whether plaintiff has acted unfairly or without excuse in bringing suit long after award
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Protests – Sample Protest Issues
• Pre-Award Issues:– Restrictive Specifications– Ambiguous Specifications– Improper Sole Source or Limit on Competition– Unreasonable Bundling of Agency Requirements– Improper RFP Terms
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Protests – Sample Protest Issues
• Post-Award Issues:– Improper Evaluation
• Use of unannounced criteria• Failure to follow RFP criteria• Unfair application of criteria
– Improper Exclusion from Competitive Range• Failure to discuss significant weaknesses• Improper evaluation (see above)
– Unequal Discussions• Technical transfusion
– Basic Theme – lack of equal treatment among offerors
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Protest Procedures• Agency
– Quick, informal resolution (generally, within 35 days).– Relatively low legal costs.– Little discovery, if any.
• GAO– Resolution in 100 days.– Relatively full discovery with protective order.– Supplemental protests based on documents produced.– Possible hearings.
• Court of Federal Claims– No set time for resolution, but proceedings can be extremely
expedited.– Relatively full discovery – possible depositions.– Supplemental or amended protests possible.– Oral argument on cross-motions.
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Protests – Strategic Considerations
• Angering the customer.– Agency protests less disruptive than GAO or Court.
• Likelihood of success.– Depends on the issue.
• Effectiveness of a stay.• Cost / speed of decision.• Likelihood of discovery to uncover new errors.• Winning the protest vs. winning the contract.
– Possibility of “corrective action” that cures problem without helping protester.
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Protests – Strategic Considerations
Forum “Angering Customer”
Cost / Speed Discovery Stay
Agency LowestLowest cost / Fastest decision
Least discovery
Subject to override
GAOModerate (depends on situation)
Relatively expensive / 100 days
Extensive discovery, protective order
Subject to override
Court
Moderate (depends on situation)
Most expensive / Depends on the case
Extensive discovery, protective order
Not subject to override, but can be more difficult to obtain
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Claims
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Claims – Basic Statutory RequirementsContract Disputes Act• CDA procedures begin with making a written demand or
assertion to the Contracting Officer, which is called a “claim.”– Claim may be presented within 6 years of when it accrues.
(Note different from appeal time from final decision.)– Claims over $100,000 must be certified.
• Claim results in the CO’s “final decision.”• Appeal from final decision
– To the appropriate Board of Contract Appeals within 90 days, OR
• Civilian Board of Contract Appeals (CBCA)• Armed Services Board of Contract Appeals (ASBCA)
– To the Court of Federal Claims within one year.• CDA procedures are exclusive.
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Civilian Board of Contract Appeals
• Established effective Jan. 6, 2007, by the National Defense Authorization Act for FY 2006.
• CBCA’s authority extends to all executive agencies other than DOD, NASA, the United States Postal Service, the Postal Rate Commission, and the Tennessee Valley Authority.
• Prior to the CBCA, contract disputes involving civilian executive agencies were heard and decided by eight different boards of contract appeals (i.e., GSA, Agriculture, Energy, HUD, Interior, Labor, Transportation, VA).
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Claims – Subcontractor Claims
• CDA claims do not generally include subcontractor claims against prime contractor.
• Subcontractor claims are generally subject to ordinary state contract law governing contracts between private parties, with federal law used to interpret FAR-type provisions
• Some subcontractors may obtain agreement of prime contractor to “sponsor” a CDA claim, in which the sub sues the Government in the prime’s name.
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Claims – Examples of CDA Claims
• Price Adjustment issues• Excusable delay/Government-caused delay• Appeal of default termination• Defective pricing• Alleged noncompliance with contract terms
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Claims – Examples of Claims NOT covered by CDA
• Fraud / criminal matters• Tort Claims• Subcontractor claims• Contracts between U.S. and Foreign Govt.
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Claims – Alternative Dispute Resolution• The Boards and the Court encourage ADR and have
a variety of approaches:– Non-binding mini-trials;– Mediation;– Advisory opinions; and– Party-designed processes.
