current trends in federal bid protests

Current Trends in Federal Bid Protests

National 8(a) Association MeetingOctober 30, 2013

Rick Oehler Lee Curtis

2

Perkins Coie

Offices: 19 across the United States and China, including Anchorage, Seattle and D.C.

Perkins has represented ANCs for well over 30 years

Perkins has a strong Government Contracts practice

web based resources for government contractors http://www.perkinscoie.com/government_contracts/

3

Current Trends In Federal Bid Protests

Part I Overview Debriefings

Part II Small Business Issues

Part III Alternative Forums Standing and Typical Bid Protest Issues

44

GAO: Cases Filed

FY05 FY06 FY07 FY08 FY09 FY10 FY11 FY120

500

1000

1500

2000

2500

1,356 1,326 1,411

1,652

1,989

2,299 2,3532,475

Cases Filed-9% -2% +6%

+17%

+20%

+16%+2%

+5%

5

Bid Protests – Overview

CHARACTERISTICS OF FEDERALPROCUREMENT PROCESS Generally competitively awarded Governed by numerous statutes and regulations Government officials are required to comply with

those statutes and regulations, but also have significant discretion

6


WHAT IS A BID PROTEST? A formal complaint against some aspect of a

federal procurement process which asserts either A violation of law; or A decision that lacks any rational basis

7


VIOLATION OF LAW Generally only federal procurement law Statutes (like Competition in Contracting Act or

Procurement Integrity Act) Regulations (like FAR, DFARS or SBA

regulations)

8


DECISION LACKING A RATIONAL BASIS? A decision or action that lacks any logical support at

all A decision based on materially mistaken or

erroneous facts A decision contrary to the solicitation A decision based on improper motives

9


PROTESTS CAN BE MADE AT MANYDIFFERENT POINTS IN THE PROCESS Prior to the solicitation

(example: synopsis of sole-source contract)

After solicitation, but prior to award(example: solicitation with objectionable terms)

After award (disappointed offeror)

10


REALITY NO. 1 – A FORMAL PROTEST IS NOTTHE PREFERRED APPROACH TO MOSTISSUES

This is business and the government procuring agency is your customer

The customer may not always be right, but good relations must be maintained

Evaluate if there are alternative ways to be persuasive

11

Bid Protests – OverviewALTERNATIVE – Letter to Contracting Officer Lowest cost, but may not get review beyond CO's team;

may result in review by agency counsel Still need to identify a legally and factually sound basis

for change in agency course Prior to agency protest, all parties shall attempt to

resolve "concerns" at the CO level. FAR 33.103(b) Responses to notice of proposed sole-source award Pre-solicitation and post-solicitation conferences Q & A process regarding solicitations Take advantage of opportunities to address inappropriate

restrictions and evaluation schemes

12


REALITY NO. 2 – SOMETIMES A FORMALPROTEST IS THE ONLY WAY TO PROTECTYOUR INTERESTS

When competition is not being permitted When the Government fails to follow the RFP

rules When a new perspective will help ensure a fair

result When a final decision is dead wrong

13


REALITY NO. 3 – TO MAKE INTELLIGENTDECISIONS ABOUT WHETHER TO FILE APROTEST, YOU HAVE TO KNOW –

Federal procurement process rules Bid protest process rules Deadlines are VERY TIGHT! Your own objectives in filing a protest

14


OBJECTIVES IN FILING A PROTEST Gaining an opportunity to compete at all Gaining an opportunity to compete on a level

playing field Gaining an opportunity for a second look in an

evaluation Sending a message to shape a procuring

agency's future actions

15


DECISION TO ESCALATE TO PROTEST May be forced by timing

Action against non-competitive process Action against overly restrictive RFP terms Action against perceived violation of Procurement

Integrity Act

16

Bid Protests – Debriefings

WHAT ARE DEBRIEFINGS? Informative exchanges required by regulation

after exclusion or contract award (FAR 15.505 and 15.506) Can be face-to-face meeting, telephonic

conference or in writing

17


WHO IS ENTITLED? Offerors excluded from a competitive range All offerors after an award selection is made Mandatory only for FAR Part 15 procurements

Not necessarily required for formally advertised (Part 14) or simplified acquisitions

18


WHAT IS A DEBRIEFING AND HOW CAN YOU USE IT? To help make an informed and intelligent decisions

regarding whether to protest To help obtain information to use in pursuing a

successful protest To obtain additional insights for future competitions To help position you (as successful contract

awardee) to defend against a protest

19


PRE-AWARD DEBRIEFINGS Offered to offerors excluded from

competitive range or otherwise excluded (FAR 15.505)

Make a written request within 3 days of notice

Government to debrief "as soon as practicable" - compelling circumstances can delay until after award

20


PRE-AWARD DEBRIEFINGS At a minimum pre-award debriefing includes:

Agency evaluation of significant elements of proposal

Summary of rationale for exclusion Reasonable responses to relevant questions about

compliance with procedures and regulations Other information may be requested Certain types of information will not be disclosed

21


POST-AWARD DEBRIEFINGS (FAR 15.506) Offered to offerors after contract award Make a written request within 3 days of notice "To maximum practicable extent" held within 5

days of written request Government can accommodate an untimely

request for a debriefing

22


POST-AWARD DEBRIEFINGS (con't) At a minimum, includes

Government's evaluation of requestor's weaknesses and deficiencies

Overall evaluated cost or price and technical rating of the awardee and the debriefed offeror

Past performance of debriefed offeror Make and model of successful offeror Overall rankings of offerors Summary of rationale for award Reasonable responses regarding procedures

23


GOVERNMENT IS NOT TO DISCLOSE Point by point comparisons Trade secrets or confidential

processes/techniques Confidential commercial or financial

information Names of references providing past

performance information

24


EFFECTIVE DEBRIEFING TECHNIQUES Be fully prepared (evaluation criteria, process,

focus areas) Listen closely and read between lines Ask follow-up questions Agree in advance on how far to push Possibly caucus to evaluate how to proceed Agree to accept additional information Face-to-face is preferred if possible

25


DEBRIEFINGS OF THE AWARDEE Authorized by regulation Potentially useful to –

learn how to improve proposal/ratings help defend against a protest

26


TIGHT GAO PROTEST TIMELINES Lee will discuss the timeline to file a

protest at GAO after a debriefing However, the timelines are tight GAO enforces timelines strictly

27

Bid Protests – Small Business

Types covered: Size Protests Affiliation/Ostensible Subcontractor

Area Office Determinations and OHA Appeals

28

SIZE PROTEST

The SBA Area Director for Government Contracting (or designee) will notify the following that protest received: CO Protested concern Protestor

If HUBZone, then AA/HUB will be notified If SDB, the AA/8(a) BD will be notified SBA has 10 working days (if possible) to make a

formal size determination

29

The Size determination will be based on the evidence presented in the protest, but the SBA may use outside information

SBA will give greater weight to supported factual information than unsupported allegations

SIZE PROTEST (cont'd)

30


Response The concern whose size is at issue must complete SBA Form

355 within 3 working days from the date of receipt from SBA If the concern fails to respond, SBA may presume that the

concern is other than a small business A concern whose size status is at issue must furnish

information about its alleged affiliates to SBA, despite any third party claims of privacy or confidentiality, because SBA will not disclose information obtained in the course of a size determination except as permitted by Federal law

The concern whose size is under consideration has the burden of establishing its small business size

31


Time limits Non-negotiated procurements: 5 days after bid or

proposal opening Negotiated procurements: 5 days after the CO

has notified the protestor of the identity of the prospective awardee

Electronic notification of award: 5 days after the electronic posting

Multiple award schedule: any time prior to the expiration of the contract period (including renewals)

32


Affiliation Concerns and entities are "affiliates" of each other

when one controls or has the power to control the other. 13 CFR § 121.103(a)(1).

SBA considers factors such as ownership, management, previous relationships with or ties to another concern, and contractual relationships. 13 CFR § 121.103(a)(2).

33

Affiliation

Determined under 13 CFR 121 and 134 Factors weighed:

Identity of Interest Common Management Totality of Circumstances: SBA will

consider the totality of the circumstances, and may find affiliation even though no single factor is sufficient to constitute affiliation. 13 CFR 121.103(a)(5).

34

Ostensible Subcontractor Rule13 CFR 121.103

A contractor and its ostensible subcontractor are treated as joint venturers, and therefore affiliates, for size determination purposes

An ostensible subcontractor is a subcontractor that performs primary and vital requirements of a contract, or of an order under a multiple award contract, or a subcontractor upon which the prime contractor is unusually reliant

35

Ostensible Subcontractor Rule13 CFR 121.103

All aspects of the relationship are considered "Team" experience Intent: prevent other than small firms from

circumventing the size regulations. Appeals are intensively fact specific

Relate to specific requirements of each solicitation

36

Area Office Determination/OHA

If an Area Office determines affiliation/ostensible subcontractor rule was violated, person losing that decision "appellant" may appeal the ruling to OHA.

Appeals are intensively fact specific because they are based upon the specific requirements of each solicitation. "All aspects of the relationship" must be evaluated. 13 CFR 121.103.

37

Affiliation: OHA Appeal

Appellant has the burden of proving by a preponderance of the evidence (more likely than not) all elements of the appeal.

Appellant must prove the Size Determination is based on a clear error of fact or law. 13 CFR 134.314.

This is not de novo review, but based on the record established.

38

Bid Protests – Alternatives

PROTESTS CAN BE PURSUED WITH – Contracting Officer Procuring Agency Government Accountability Office (GAO) Court of Federal Claims (CFC)

39

InterestedParties

Agency

GAO

Court ofFederalClaims

Court of Appealsfor Fed Circuit

Bid Protests – Alternative Forums

40


PROCURING AGENCY (FAR 33.103) Interested party may request an independent

review by procurement professionals at levels above the CO

Some agencies take more seriously than others Can be most effective on pre-award issues (overly

restrictive; exclusions; PIA) Unusual to gain satisfaction in post-award

protests Quick resolution; decision encouraged in 35 days

41


PROCURING AGENCY FILINGDEADLINESSame as GAO – discussed laterCheck individual agency rules

42

Bid Protests – AlternativesGAO Provides true outside expertise (80+ years) Automatic stay with a timely protest filing Substantial opportunities to develop facts regarding

evaluations and other proposals Full report Document requests Hearings (at GAO's discretion)

Opportunities maximized through protective order; requires legal counsel not involved in competitive process

Recovery of protest costs Agencies almost always follow recommendation

43


GAO –Protest Deadline Protests alleging a solicitation defect must be filed before

bid opening or the time set for receipt of initial proposals if the improprieties were apparent prior to that time. 4 C.F.R. § 21.2(a)(1).

Other protests, including post-award protests, must be filed not later than 10 days after the basis of the protest is known or should have been known or within 10 days of debriefing. 4 C.F.R. § 21.2(a)(2).

If protester timely filed agency-level protest, within 10 days of actual or constructive knowledge of adverse agency action. 4 C.F.R. § 21.2(a)(3).

44


CICA Stay, 31 U.S.C. 3553(c) and (d) Stay is crucial in order to obtain meaningful relief By law, an Agency may not award a contract after

notice of pending protest GAO must notify agency within the required time

limits CICA Override Head of Procuring agency must make finding GAO must be notified

45

CICA Stay - FAR 33.104(c)(1)

Contract Award

Notice to Agency by the GAO

10 days

or

5 days

Offered Debrief Date and Debrief is required

46

Basis known or should have known or debrief date

Protest Filed at GAO, § 21.2(a)(2)

Protester Comments § 21.3(i);

Supplemental Grounds?

GAO Decision § 21.9

Agency Document List § 21.3(c)

Agency Report § 21.3(c)

Agency Response to Supplemental § 21.3(c)

10 days0 25 30 40 50 100

GAO Notice

10 days

5 daysDebriefDateOffered to Protestor

Contract Award, or

Timeline: GAO Post-Award Protest and Agency CICA StayGAO

AGENCY - CICA

Potential for Hearing

70

4747

GAO: Merit Decisions and Protests Sustained

18.6% 23% 29% 27% 21% 18% 19% 16%

48


COURT OF FEDERAL CLAIMS Court process – opportunity for discovery GAO deadlines do not apply No automatic stay; agency may stop

voluntarily and may also be enjoined Process more expensive and can be more

complicated than GAO Decisions are appealable to Federal Circuit Can challenge agency override of stay

49


THE OPTIMAL FORUM – WILL VARYDEPENDING ON STAGE IN PROCESS,TYPE OF ISSUE INVOLVED, GOALS ANDRESOURCES TO BE COMMITTED Early in process

Contracting officer or agency Need access to evaluations/other proposals

GAO or Court to use protective order Goal is to ensure status quo during protest

GAO or Court to achieve effective stay

50

A GAO protest must be filed by an "interested party," which means an actual or prospective bidder or offeror with a direct economic interest in the procurement. 4 C.F.R. § 21.0(a). Generally means an offeror that would potentially

be in line for award if the protest were sustained. For agency protests, essentially the same

standard as GAO At COFC, two-part test applies to determine an

"interested party"

Bid Protests – Standing

51

Bid Protests – Standing

Interested parties do not include subcontractors except where the awarding agency has requested in writing that a subcontract protest be decided pursuant to 4 C.F.R. § 21.13.

52

Bid Protests – Typical Issues

Source selection decisions Past performance evaluations Discussions Conflicts of interest

53


Source Selection Source selection decisions must be rational and

consistent with the solicitation's evaluation criteria

Reasonableness/rationality: GAO will not "reevaluate" the proposals Protester's "mere disagreement" with the

evaluation is not sufficient to render it unreasonable

54


Past Performance issues include—

Similarity of past performance

Agency required to follow solicitation requirements

Agency must consider past performance information "too close at hand" to ignore

55


Discussions When an agency engages in discussions, it must

afford offerors in the competitive range an opportunity to engage in meaningful discussions. FAR 15.306(d)(1)

At minimum, COs must discuss with each offeror considered for award "deficiencies, significant weaknesses, and adverse past performance information to which the offeror has not yet had an opportunity to respond." FAR 15.306(d)(3)

56


Conflicts of Interest issues include— Agency must reasonably consider potential

conflicts of interest created by awardee's involvement in certain activities

Conflict of interest mitigation plans

57

Bid Protests – Intervening

Why the awardee may want tointervene To protect its interests To obtain access to information subject to a

protective order Generally, only outside counsel can obtain

access to information subject to a protective order

58

Bid Protests – Recap

Protests are sometimes required to protect your interests

Protests move very quickly Imperative to know the rules to meet deadlines

Counsel should be involved as early as possible Spot and evaluate potential protestable issues

59

Hot Topics/Trends

● Possible requirement to choose between GAO or COFC

● Discussion of GAO filing fee

● Dan Gordon commentary on the utility of bid protests

● Trend toward agency corrective actions

60

Questions or comments, please write, call or email:

Rick OehlerPerkins Coie LLP1201 Third Avenue, 40th Fl.Seattle, WA 98101-3099(206) 359-8419(202) [email protected]

Lee CurtisPerkins Coie LLP700 13th Street, N.W., Suite 600Washington, D.C. 20005-3960(202) [email protected]

28011700.1

mailto:[email protected]



current trends in federal bid protests

Documents

bid protests overviewprotests

bid protests overviewdecision

bid protests overviewwhat

federal bid protestsnational

agency protest

typical bid protest

formal protest

solicitationa decision