keys to winning bid protests and defending contract awards ...€¦ · •bid protest reforms in fy...
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Keys to Winning Bid Protests and Defending Contract Awards
FEDERAL GOVERNMENT CONTRACTS:How to Navigate in the New Administration
November 16, 2017
Adam K. LaskyOles Morrison Rinker & Baker LLP
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• Bid Protest Reforms in FY 2018 NDAA (just released Nov. 8)• FY2017 GAO protest stats (just released Nov. 14)• Debriefing Strategies• Understanding Protective Orders• Choosing the Best Forum for your Bid Protest• Winning Strategies at Government Accountability Office (GAO)• Winning Strategies at U.S. Court of Federal Claims (COFC)• Defending your Contract Award Under Protest
Overview
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• GAO protest procedures and timeliness rules– #1 Procedural Pitfall ‐ Never trust a chart or cheat sheet re timelines of GAO protest – always review the regulations & consult an attorney • Occasionally GAO case law runs contrary to plain language of the rules GAO • Timeliness rules are changed every few years• Some protest issues don’t fall neatly within any of the timeliness rule – need to rely on GAO decisions to understand timeliness rules
– Procedural rules for Agency‐Level, GAO and COFC protests are covered in detail in Federal Bid Protests chapter included in the materials (but still check rules/cases)
What we aren’t covering
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GAO Bid Protest Stats FY 2017
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• Why did the total number of protests decrease (‐193) for first time in five year?– Two events account for decrease
• Latvian Connection barred from filing GAO protests for 11 of 12 months in FY17 (‐145 protests) – Went from 150 protests in FY16 to 5 protests in FY17 (has already filed 7 in FY18)
• Number of task order protests dropped because of change in jurisdictional dollar limits on Task Order protests (‐119 protests)– 2 ½ month period of time where GAO lost jurisdiction over civilian task order protests (Oct. 1, 2016 – Dec. 14,
2017)– DoD task order protest min. value increased from $10M to $25M
• Why did the increase in Effectiveness Rate go up and the Sustain Rate go down?– Sustain Rate:
• Last year was a bit of an anomaly• Not a great metric anyways
– Effectiveness Rate:• Much better metric• Reaction to last year’s sustain rate• Removal of Lativian Connection from the protest pool
GAO Bid Protest Stats FY 2017
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GAO (FY 16‐17 avg.) COFC (FY 16)
Protests closed 2703 103*
Merits Decisions 599 (22%) 57* (55%)
Protests Sustained 119 12*
Sustain Rate 20% 21%
Effectiveness Rate 46% ? (21%‐44%) ?
GAO vs COFC Bid Protest Stats
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• Proposed by the Senate– GAO Protest Period Reduced from 100 to 65 days (DoD only)– Incumbent Contractor Profits Withheld if Filing a GAO Protest that Extends its Incumbent Contract
– Enhanced Post‐Award Debriefings (DoD only)– Pilot Program for Payment of Gov’t Costs for Denied GAO Bid Protests
• Proposed by the House– Nothing
FY 2018 NDAA Bid Protest Reforms
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• Reforms Agreed to by Senate and House Conference Committee– GAO Protest Period Reduced from 100 to 65 days (DoD only)– Incumbent Contractor Profits Withheld if Filing a GAO Protest that Extends its Incumbent Contract
– Enhanced Post‐Award Debriefings• Will be implemented through DFARS revisions within 180 days of passage• Only apply to DoD procurements• Watered down from Senate proposal
– Pilot Program for Payment of Gov’t Costs for Denied GAO Bid Protests• Watered down from Senate proposal
FY 2018 NDAA Bid Protest Reforms
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• Enhanced Post‐Award Debriefings – Redacted SSD– Debriefings shall include a redacted copy of agency’s written source selection award determination• Only applies to “required” debriefings• Only applies if contact award:
– exceeds $100M, or– contract award exceeds $10M and the contractor requesting the debriefing is a small business or nontraditional contractor AND they request such disclosure
• How will “written source selection award determination” be defined in the DFARS?
FY 2018 NDAA Bid Protest Reforms
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• Enhanced Post‐Award Debriefings – Follow‐Up Questions– Disappointed offeror is allowed to submit follow‐up questions within two business days of receiving a post‐award debriefing, which must be answered in writing by the agency within five business days.
– Debriefing is not considered concluded until agency delivers its written responses to follow‐up questions.
– Five‐day CICA Stay clock doesn’t start until agency delivers its written responses to follow‐up questions.• Impacts GAO protest filing deadlines ‐‐ Timeliness and CICA Stay purposes
FY 2018 NDAA Bid Protest Reforms
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• Enhanced Post‐Award Debriefings – Potential typo in the agreed bill?
• “the Secretary of Defense shall revise the [DFARS] to require that all required post‐award debriefings … include, at a minimum … A requirement for a written or oral debriefing for all contract awards and task or delivery orders valued at $10,000,000 or higher.” HUH?!?– Version originally passed by Senate “written and oral debriefing”
– Very positive changes for contractors and government• Should lead to better debriefings and ultimately better offers• Should reduce total number of protests files • Should lead to stronger and broader initial protests
– Greater document discovery• Should lead to increase in sustain rate and corrective action rate
–Will Congress make legislate similar changes for civilian agency procurements?
FY 2018 NDAA Bid Protest Reforms
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• Pilot Program for Payment of Gov’t Costs for Denied GAO Bid Protests– DoD will implement pilot program to determine the effectiveness of requiring contractors to reimburse the DoD for costs incurred in processing GAO protests that are denied by GAO in their entirety.
– Pilot program will only apply to contractor’s with previous year revenue in excess of $250M
– Pilot program will run from aprox. Dec. 2019 – Dec. 2022– Good or Bad News?
• Only applies to a minority of contractors• Can be avoided by going to COFC• Can be avoided by dropping protest before final decision issued• DoD’s cost of “processing” a GAO protest will generally be minimal • Should provoke a more honest assessment of protest merits• Unlikely to dissuade a single contractor from filing a protest (but may lead to some protesters withdrawing before final decision)
FY 2018 NDAA Bid Protest Reforms
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• Vast majority of GAO and COFC bid protests are done under Protective Order
• Only people admitted to the Protective Order can see source selection sensitive materials (i.e. most of the protest related documents)
• Who can be admitted to Protective Orders?– Outside counsel– Experts/Consultants – In rare circumstances in‐house counsel
• Impacts of Protective Order– Client wont get to review anything before its filed other than the initial protest– Client get to see only a small subset of filings, mostly in redacted form– Requires client to give good direction in advance to attorney– Requires trust – outside counsel has to make strategic decisions without consulting client
– Trying to prosecute a protest without having an attorney admitted greatly diminishes your chance of success
Understanding Protective Orders
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• Why does it matter for bid protests?– Most important for GAO protests– Obtain info that helps you decide whether to protest– Obtain info that helps you win a protest
• Obtain information that supports suspected protest arguments • Obtain information that allows you to protest as many aspects of the evaluation as possible increases discovery supp. protests
• Key Strategies– Request a Debriefing Immediately After You Receive First Notice of Award/Elimination
– Be Organized and Prepared: Study the RFP Submission/Evaluation Criteria and Your Proposal & Create a Chart
– Know the Common/Successful Bid Protest Arguments– Assign Roles to Your Debriefing Team (1‐2 people just taking notes)– Don’t Argue with the Agency at the Debriefing– Don’t Offer the Agency the Chance to Correct/Clarify a Misstatement
• Key Regulations: FAR 15.505; FAR 15.506
Debriefing Strategies
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• Procedural Pitfalls– Waiting too long to request a debriefing– Assuming that the debriefing time extension for CICA Stays applies to all debriefings (must be a “required” debriefing)
– Deferring a pre‐award debriefing• Myths
– I shouldn’t request a debriefing until I have reason to suspect the agency did something wrong
– I should use my debriefing to let the contracting officer know exactly what I think of his/her decision and convince him/her to change the award
– I’m planning on protesting, I should bring my attorney to the debriefing– I can protest the agency’s failure to provide a required debriefing
• Be aware of changes once FY 2018 NDAA is implemented
Debriefing Strategies
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• Agency‐Level vs GAO vs COFC• Why does it matter?• Key Considerations:
– What are you challenging?• ‐Solicitation ‐Elimination ‐Award ‐Corrective Action
– Stay of Performance/Award– Scope of Discovery – Evidence Considered– Differing Legal Interpretations– Subject Matter of Your Protest– Hearings– Opposing Counsel– Protest Costs
• Procedural Pitfalls and Myths
Choosing the Best Forum for your Bid Protest
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• Maximize the debriefing process • Drafting initial protest arguments & doc. requests to maximize discovery• Know the procedural rules (4 CFR 21)• Take advantage of procedural nuances (briefing schedule)• Better to be dismissed as premature than dismissed as untimely• Reviewing the Agency Report
– Start from the end– 1st review quick (2 days to request additional docs.); 2nd review methodical– Comments strategy– Supp. Protest strategy
• Know the viable arguments so you know what to look for• Supp. protests to target more docs.• Supp. protests to win
• Drop weaker arguments before GAO closes the record• Clear and precise citations to the record• Be prepared to cut and run• Procedural Pitfalls
Winning Strategies at GAO
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Examples of Viable Post‐Award Bid Protest Strategies • Deviation from RFP’s stated
evaluation criteria– Use of unstated evaluation
criteria (or failure to consider stated evaluation criteria)
– Weighting evaluation factors inconsistent with the weighting stated in the RFP
• Use of a clearly irrational evaluation method (not disclosed in RFP)
• Unequal treatment of offerors• Inadequate documentation of the
source selection record• Flawed technical evaluation
– Acceptance of proposal that fails to meet a material requirement
– Acceptance of a blanket offer of compliance
– Acceptance of an offer that fails to provide information required by the RFP
– Evaluation plainly inconsistent with, or ignores, information in technical proposal
– Mechanical evaluation of technical proposal against government estimate
• Flawed past performance evaluation– Failure to consider relevance of
past performance– Failure to consider past
performance information that is “too close at hand” to ignore
– Unreasonably crediting offeror with past performance of affiliates that were not show to have meaningful involvement in proposed contract performance
– Consideration of past performance reference that did not meet relevancy criteria in RFP
– Consideration of past performance of subcontractor where prohibited by the RFP
• Flawed cost evaluation (cost‐reimbursement contracts)– Failure to perform cost realism
analysis– Material flaws in cost realism
analysis– Mechanical application of
government estimate in cost realism analysis
– Use of unadjusted cost in tradeoff decision
• Flawed price analysis– Failure to conduct a required
price realism analysis– Use of a price realism analysis
where not called for in RFP– Mechanical application of
government estimate in price realism analysis
– Use of price realism analysis to adjust evaluated price
• Flawed discussions– Lack of “meaningful” discussions– Misleading discussions– Discussions favor one offeror over
another• Flawed best value decision• Organizational conflict of interest• Waiver of definitive responsibility
criteria• Failure to refer the elimination of a
small business based on a responsibility factor or traditional‐responsibility‐factor to the SBA for a Certificate of Competency proceeding
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• Reviewing the Administrative Record – Treasure Hunt ‐‐ Take advantage of COFC favorable discovery rules– Different briefing schedule from GAO
• Open up lines of communication with DOJ early – advocate for corrective action
• Be cognizant of COFC evidence rules• Evolving TRO standard?• Pick and choose your arguments – make sure they move the needle• Study your assigned Judge’s opinions – they do not all think alike• Second‐bite protests• Procedural Pitfalls
Winning Strategies at COFC
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• Awardees can & should intervene• Why intervene?
– Seat at the table to assist defense and influence course of the protest• Assist defense of protest• Time, legal expertise, technical expertise, motivation• Opportunity to convince agency not to take corrective action (or challenge an attempt to take corrective action
• Avoid potential empty chair issues
– Benefit of knowledge gained from protest– Risk of being charged with imputed knowledge if you don’t intervene
Defending Your Contract Award Under Protest
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• Effective Intervention at GAO– Intervener files its briefing (Comments) after the Gov’t and at the same time as the Protester
– Get ahead of the game• Look for grounds for dismissal – file a motion to dismiss early• Contact Gov’t as early as possible• Active support limits likelihood of corrective action• Volunteer to assist (and provide help even if they don’t ask for it)
– Provide Gov’t counsel legal research– try to let them involve you in the Agency Report– make sure that the Agency Report is legally sound
• Waiting to take active steps until Comments is probably too late to have a meaningful impact
Defending Your Contract Award Under Protest
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• Effective Intervention at the COFC– Intervener files its briefing at the same time as the Gov’t– Collaborate with DOJ on MJAR briefing if possible– Intervenor's MJAR can be very meaningful
Defending Your Contract Award Under Protest
