Bid Protests In Brief

Mark D. ColleyArnold & Porter LLP

NCMA Boston ChapterNovember 18, 2015

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What are Bid Protests?

Disputes regarding the procurement process – Contractors enlisted to enforce the rules and preserve

competition

A means to contest errors, rule violations, and “unreasonable” judgments– NOT a way to resolve policy choices

Great deference to discretionary judgments– Agency “has the right to get it wrong”

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Protest Types

Pre-Award — Ground rules and competitive range– Example: Challenging a problematic solicitation term

that impairs a proposal strategy or favors a competitor.

Post-Award — Contract award flaws– Example: Challenging a failure to follow solicitation

terms or applying them unequally.

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Protest Forums

Government Accountability Office (“GAO”)̶, Fast, intensive, and (relatively) informal̶, Branch of Congress--recommends agency action̶, No appeal rights, but may refile at COFC

Court of Federal Claims (“COFC”)̶, Traditional court rules, but special expedited protest

procedures̶, Can order agency action̶, Appeals to the Federal Circuit

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Protest Forums - Cont’d

Agency protests,̶ Less formal and limited process, so less directly confrontational

,̶ Agency self-assessment, but review above the contracting officer.

,̶ Typically reserved for preaward protests

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Protest Timing—GAO Protests

• Pre-Award: before the deadline for proposal receipt or bid opening.

• Post-Award: – Default Rule: within 10 calendar days after award or when

basis for protest is “known or should have been known.” – Debriefing tolls the default rule:

• not later than 5 calendar days after a requested and required debriefing in order to secure an automatic stay of contract performance, otherwise, no later than 10 calendar days after the debriefing.

• Really 4 ½ days

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Best Practices: Addressing Pre-Award Concerns– Speak Now Or Forever Hold Your Peace

Promptly assess issue.– Ground rules concerns due before proposal submission,

time to challenge other issues as short as 10 days.– System favors open competition.

Consider use of bidders’ questions to address structure concerns.

Never delay a pre-award debriefing. Consider informal channels for disagreement, as

appropriate (e.g., agency counsel). Consider pros and cons of a pre-award protest.

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Automatic Stay

GAO Protests Only; Not COFC (injunction decision)

Remains in effect while the protest is pending.

Important leverage; protest viability reduced without a stay.

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Automatic Stay: Agency Override

The head of the procuring agency may authorize the award or performance of a contract upon a written determination and finding that:– “urgent and compelling circumstances that significantly

affect interests of the United States” will not permit waiting for a resolution of the protest.

Challenging an override: The Protester may challenge the override by filing an action in the Court of Federal Claims.

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Post-Award Debriefings

Timely request essential (3 business days)– TAKE THE DATE OFFERED!

Scope/structure varies widely– In person, telephonic, entirely written– Controlled and choreographed

FAR requirements limited -- Not subject to challenge– significant weaknesses or deficiencies; – the overall evaluated cost and technical rating of the awardee and the debriefed

offeror; – the overall ranking of all offerors; – a summary of the rationale for the award; – reasonable responses to relevant questions posed by the debriefed offeror

as to whether source selection procedures set forth in the solicitation, applicable regulations, and other applicable authorities were followed by the executive agency.

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Post-Award Debriefings – Cont’d

Best practices– Information gathering vs. debate– Include attendees who know the procurement and

proposal in detail• Counsel?

– Prepare questions in advance (sometimes requested)– Request redacted SSDD, etc. and copies of all debrief

materials– Get written confirmation if agency holds debriefing

open

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GAO Protests: Procedure

Agency counsel defends– Agency resources vary widely– Awardees may (and should) intervene to help defend the award

decision

Agency responds 30 calendar days after protest filing– Includes Evaluation Record

Comments and Supplemental Protests (if any)10 calendar days after Agency response/record

Supplemental briefing; hearing; ADR – all at GAO’s option. Decision within 100 calendar days from filing.

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COFC Protests Are Different

DOJ handles protest defense, not agency counsel.

No fixed filing, procedural or decision deadlines.

Single judge vs. “institutional” review.

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Forum Choice

Most start at GAO -- Automatic stay; can move to COFC

GAO has exclusive jurisdiction over IDIQ task order protests (over $10M or excess scope)

COFC more burdensome/expensive

Some circumstances and law may favor COFC

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Common Considerations Before Protesting

Criticality of procurement Likelihood of protest success Likelihood of ultimate procurement success Size of procurement Customer relations – customer burden Impact on agency conduct more generally Investment in procurement Lack of adequate agency explanation Availability of CICA stay/injunction Costs of protest process/possibility of fee award

– Costs of affirmative protest unallowable – FAR 31.205-47– Costs of protest defense unallowable absent CO request – FAR 31.205-47– Fee recovery available (typically partial) under CICA/EAJA in limited circumstances

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Protective Orders

• Proprietary proposals and source selection evaluations

• Only attorneys and consultants not involved in “competitive decision-making”

• A severe handicap on counsel, particularly in highly complex, specialized and technical cases

– “Answer the Questions”– A material benefit to have in-house counsel participate

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Protest Grounds

Fact dependent. Each procurement is different.

No Rule 11 standard– Inference and analysis/“Information and belief” can suffice.

RFP Section M is the key.– Assess the basis for award and what must change to affect the outcome.– Evaluation criteria weights are critical. Were they applied properly?

Where were the mistakes and inequities?

Protester must demonstrate prejudice due to the procurement errors.

Some things are not subject to protest:– Contract administration;– Subcontract awards;– Bias.

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Top Four Reasons GAO Sustained Protests In FY2014

Failure to follow evaluation criteria

Flawed source selection decision

Unreasonable technical evaluation

Unequal treatmentSource: GAO Bid Protest Annual Report to Congress for Fiscal Year 2014,

B-158766.

+2: -Lack of meaningful Discussions

-Cost/price realism evaluations

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Preparations and Support

Outside counsel – involve early– Selection and conflict resolution– Briefings, background materials

Proposal Team– Manage expectations

• “Don’t believe everything you may suspect”– Coach on timing, debriefing planning, protective order

limits– Identify experts--even before award– Classified procurements require even more lead time

and logistical arrangements

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Bid Protest Statistics for Fiscal Years 2010-2014

FY 2014 FY 2013 FY 2012 FY 2011 FY 2010

Cases Filed 2,561(up 5%)

2,429(down 2%)

2,475(up 5%)

2,353(up 2%)

2,299(up 16%)

Cases Closed2,458 2,538 2,495 2,292 2,226

Merit (Sustain + Deny)Decisions 556 509 570 417 441

Number of Sustains 72 87 106 67 82

Sustain Rate 13% 17% 18.6% 16% 19%

Effectiveness Rate 43% 43% 42% 42% 42%

ADR (cases used) 96 145 106 140 159

ADR Success Rate 83% 86% 80% 82% 80%

4.70% 3.36% 6.17% 8% 10%Hearings (42 cases) (31cases) (56 cases) (46 cases) (61 cases)

Source: GAO Bid Protest Annual Report to Congress for Fiscal Year 2014, B-158766

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CRS Analysis – Comparison of Total Contract Obligations To Protests Filed

Source: Congressional Research Analysis of GAO Data, available at http://www.fas.org/sgp/crs/misc/R40227.pdf

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QUESTIONS?

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For Additional Information, Please Contact:

Mark D. Colley, PartnerArnold & Porter LLP – Washington, DC

(202) 942-5720Mark.Colley@aporter.com