apmp bid & proposal con 2015 | page 1 the sixty-minute guide to government protests may 27, 2015...

APMP BID & PROPOSAL CON 2015 | PAGE 1

The Sixty-Minute Guideto Government Protests

May 27, 2015

Richard P. Rector

Why So Many Protests?

• The number of federal protests has grown steadily since 2001• At the U.S. Government Accountability Office (GAO), protests

more than doubled from FY 2001 (1,146 protests filed) to FY 2010 (2,299 protests filed) . . . consistent with increases in annual procurement spending from $235 to $535 billion

• Growth in protests has also continued in recent years despite the decline in procurement spending– Since FY 2010, with the exception of a 2% drop in FY 2013, GAO

protests have increased between 2% and 5% per year, with FY 2014 (2,561 protests filed) setting the record


• But deciding whether to file a bid protest can be difficult– Many companies are understandably reluctant to fight with a

customer over a lost contract– And the payoff for a successful protest is not necessarily a contract

award . . . usually it’s a “do over”• Nonetheless, losing a strategically important competition . . .

for reasons that are unclear or unfair . . . can be unacceptable to a company’s leaders and stakeholders, particularly in a declining market


• Protests are common on large and strategically important procurements– Significant B&P costs have already been sunk into the procurement– At GAO, there’s a 30% chance the agency will take “corrective action” of some

type, and a 15-18% chance of prevailing if the case goes to a decision on the merits

– So a protest is often a rational, next-step business decision• Protests are also common on services procurements where incumbent

can usually obtain 3+ months of additional performance• Increase in protests is driven by heightened competition . . . the chance

to snatch victory from the jaws of defeat


Improper sole-source award Contract modification exceeds scope of original contract Unduly restrictive specifications or requirements Ambiguous or unclear requirements Organizational conflict of interest

Unequal access to information … Biased ground rules … Impaired objectivity Use of unstated evaluation criterion Acceptance of offer that fails to meet mandatory requirement Unreasonable evaluation (technical, cost, etc.) Lack of “meaningful discussions” Unfair competitive advantage Improper business conduct or representations Unrealistic price or cost

What Are The Most Common Protest Grounds?


Meeting With Customer to Express Concern Letter of Concern to Contracting Officer Letter of Concern to Competition Advocate or Ombudsman

_____ File protest with Agency File protest with Government Accountability Office (GAO) File protest with US Court of Federal Claims (COFC)

What Are The Potential Remedies For A Disappointed Offeror?


Agency Protest Less public, less formal, faster Less objective, less transparent, less effective Can be good option for pre-award protest Protest Procedures are Agency-specific:

Submit timely, written protest Designate decision maker: Contracting Officer or Agency Protest Official “Automatic Stay” of contract performance is provided . . . but can be overridden by the

agency if in agency’s best interests or if there’s an urgent and compelling need to start performance

Agency makes “best efforts” to resolve agency protests within 35 days

Where Can A Protest Be Filed?


GAO Protest Public Somewhat burdensome on the agency “customer” Less formal than COFC Can trigger Automatic Stay of contract performance just by filing Decision within 100 days Review by “independent” GAO staff attorneys, with evidentiary hearing if

needed Attorneys for parties can review the full evaluation record Prevailing protester can recover attorneys/consultants fees



COFC Protest No “Automatic Stay” -- must request Preliminary Injunction No strict filing deadlines, except for solicitation challenges No time limit to issue a decision More formal and expensive litigation DoJ lawyer (rather than agency lawyer) represents Govt No recovery of attorneys/consultants fees (except small businesses under the

Equal Access to Justice Act)



“Interested party” who is “competitively prejudiced” Interested Party: An actual or prospective offeror whose direct economic interest

would be affected by the award of a contract or by the failure to award a contract Includes losing offeror (protestor) and contract awardee (intervenor) In pre-award protest, intervenors may also include offerors who appear to have a substantial

prospect of receiving an award if the protest is denied Subcontractor does not have standing to protest in most situations Protester may not be an interested party where it chose not to submit a proposal Competitive Prejudice: Protestor must demonstrate that, but for the agency’s

actions, it would have a substantial chance of receiving award

Who Can Participate In A Protest?


Pre-Award Protest Deadlines Protests based upon alleged improprieties in a solicitation shall be filed prior to submission of

proposal. Post-Award Protest Deadlines

Protests shall be filed not later than 10 days after the basis of protest is known or should have been known (whichever is earlier).

Each protest ground must be timely Applies to Supplemental Protests as well

If a debriefing is requested and required: Not later than 5 days after the debriefing to trigger the automatic stay Otherwise, not later than 10 days after the debriefing to be timely

If an agency protest is denied (“adverse initial action”), not later than 10 days after the denial (4 CFR 21.2(a)(3))

When Must A Protest Be Filed To Be Timely?


Automatic Stay: If it receives notice of a timely protest, the Agency:

May not award a contract; May not authorize performance of the contract while the protest is pending; or If applicable, must direct the awardee to cease performance under the contract and suspend

related activities Should leave 24-hour buffer for notification (5 days after debriefing is ideally 4 days after

debriefing) Procuring agency head may override the stay and authorize award or performance upon

a written determination and finding that “urgent and compelling circumstances” exist or the “best interests” of the United States require performance Protestor may challenge the override by filing a COFC action

When Must A Protest Be Filed To Obtain An “Automatic Stay” Of Contract Performance?


Possible Outcomes Summary Dismissal Agency Corrective Action Optional ADR Procedures . . . “outcome prediction” at GAO Optional Hearings . . . less than 5% of cases at GAO Merits Decision Based On The Parties’ Briefs . . . at GAO, protest must be

denied or sustained within 100 days of filing Motion for Reconsideration . . . don’t bother Unsuccessful protestor at GAO can file identical protest in the Court of

Federal Claims . . . case is re-litigated

What Are The Possible Outcomes Of A Protest?


Pre-Award Protests Agency must cease violating procurement laws and regulations (e.g., amend

solicitation, clarify requirements, cancel improper set-aside procurement) GAO: Costs of filing and pursuing protest, including reasonable attorney and

consultant fees Post-Award Protests

Agency must “fix” the problem identified in the protest (e.g., amend solicitation, re-open discussions, allow new FPRs, re-evaluate proposals) and award contract consistent with procurement laws and regulations

GAO: Costs of filing and pursuing protest, including reasonable attorney and consultant fees

What Happens If The Protestor Wins?


GAO will make sure Agencies follow the proper procedures and adequately document the procurement process

On substantive issues, GAO will defer to the Agency as long as its evaluation was “reasonable”

If reasonable people can disagree with the Agency’s evaluation (and the Agency’s rationale was documented), GAO will not substitute its judgment for that of the Agency

When Does GAO Typically Sustain A Protest?

Protest Checklist

• What are the potential protest grounds identified by the company to date? – Are they procedural or judgmental in nature? – Has there been competitive harm—or “prejudice”—to the company

for each protest argument? – Does the company need to win more than one argument to prevail?

Are there certain arguments that the company must win to prevail? – Does the company have sufficient evidence, based on the debriefing,

to prove its arguments? Or does the company need to find additional evidence in the procurement record?

Protest Checklist

• What is the likelihood of success?– How often are protesters generally successful at the GAO and the

COFC?• Effectiveness Rate• Decision on Merits

– Is corrective action likely?– Given the protest arguments identified to date, what is our likelihood

of success if the case proceeds to a decision on the merits?– Can the agency appeal or circumvent the decision if protester wins?

Protest Checklist

• What is the strategic importance of the procurement to the company’s business plans?

• Is the proposal/capture team objective about the loss? – Have they rationally judged the validity of the agency’s position? – Is their employment or compensation linked to winning the contract?

• Will a protest harm the company’s prospects of future work? – What is in the pipeline with this specific Government agency? – What kind of “tone” should be used in the protest pleadings?

Protest Checklist

• Are there any other risks of protesting that should be considered?– Risk of counter-allegations regarding the company’s compliance or

integrity? – Commercial sensitivity to a published decision?

• Is the company the incumbent contractor? – If so, will the incumbent contract likely be extended in the event of a

protest?– What is the impact to the company of extended performance?

Protest Checklist

• How much will a protest cost?– Legal Fees– Consultant Fees– Internal Costs and Resources

• Can protester recover its fees from the Government if it prevails? – GAO: partial recovery for large business, full recovery for small

business – COFC: partial recovery for small business


Questions?

Richard P. RectorChair, US Government Contracts

DLA Piper LLP (US)202-799-4400

[email protected]

apmp bid & proposal con 2015 | page 1 the sixty-minute guide to government protests may 27, 2015...

Documents