Debriefs and Protest Process

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10th Annual Defense Trade Show

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Debriefs and Protest Process

  1. 1. 2011 Defense Trade ShowBid Protests and Debriefings Presented By: Jackson Wyatt Moore, Jr. Smith, Anderson, Blount, Dorsett, Mitchell & Jernigan, LLP (919) 821-6688 jmoore@smithlaw.com www.smithlaw.com ©2010 SMITH, ANDERSON, BLOUNT, DORSETT, MITCHELL & JERNIGAN, L.L.P.
  2. 2. www.smithlaw.com Government Contracts Are Heavily Regulated • United States a Sovereign, not a Private Party – Authority to Act for Government: FAR 2.101; 1.602-1; DFARS 252.201-7000 • Federal Acquisition Regulation (“FAR”). – Issued by DoD, NASA, GSA. • FAR Supplements. – Department of Defense Supplement (“DFARS”). – Supplements for Army (“AFARS”), Air Force (“AAFARS”), Navy/Marine Corps (“NMCFARS”). ©2010 SMITH, ANDERSON, BLOUNT, DORSETT, MITCHELL & JERNIGAN, L.L.P.2
  3. 3. www.smithlaw.com Government Contracting Sources: FAR/DFAR/ etc. • Acquisition Central: Acquisition.gov/far • FAR Aggregator: farsite.hill.af.mil • Where in Federal Contracting: www.wifcon.com ©2010 SMITH, ANDERSON, BLOUNT, DORSETT, MITCHELL & JERNIGAN, L.L.P.3
  4. 4. www.smithlaw.com A definition of “Bid Protest” “[A] [written] action by an interested party objecting to a solicitation by a Federal agency for bids or proposals for a proposed contract or to a proposed award or the award of a contract or any alleged violation of statute or regulation in connection with a procurement or a proposed procurement.” 28 U.S.C. §1491(b)(1); FAR 33.101. ©2010 SMITH, ANDERSON, BLOUNT, DORSETT, MITCHELL & JERNIGAN, L.L.P.4
  5. 5. www.smithlaw.com Reasons to Protest a Bid or Award • Get the contract. • Make a point. • Keep contract in the interim if you are an incumbent. • Do you really want to sue your (potential) client? ©2010 SMITH, ANDERSON, BLOUNT, DORSETT, MITCHELL & JERNIGAN, L.L.P.5
  6. 6. www.smithlaw.com Can you protest? • What is your basis? – Specification deficiencies. – Winner not qualified for set-aside. • Priority to HUBZone contractor vs. 8(a) and SDVO. • Mission Critical Solutions v. United States (Mar. 3, 2010). – Agency awarded to a non-responsive or non-responsible bidder. • Evaluation deficiencies (unequal treatment, etc.). • Organizational Conflicts of interest . • Technical merits (hard). – Other reasons ©2010 SMITH, ANDERSON, BLOUNT, DORSETT, MITCHELL & JERNIGAN, L.L.P.6
  7. 7. www.smithlaw.com “Interested Party” An interested party is an “actual or prospective bidder or offeror whose direct economic interest would be affected by the award of the contract or failure to award the contract.” 31 U.S.C. 3551(2); 4 C.F.R. 21. ©2010 SMITH, ANDERSON, BLOUNT, DORSETT, MITCHELL & JERNIGAN, L.L.P.7
  8. 8. www.smithlaw.com “Interested Party” • Did you submit a bid? • A subcontractor to a disappointed bidder is not a bidder and cannot protest the bid of another. Eagle Design & Management, Inc. v. U.S. and Circle Solutions, Inc., No. 04-1200C (Court of Federal Claims, Sept.16, 2004) ©2010 SMITH, ANDERSON, BLOUNT, DORSETT, MITCHELL & JERNIGAN, L.L.P.8
  9. 9. www.smithlaw.com “Interested Party” • Would you win if you prevail on the protest? • Protester must show it had a substantial chance of receiving the award but for the agency’s error in the procurement process. Rex Service Corp. v. United States, 448 F.3d 1305 (Fed. Cir. 2006). ©2010 SMITH, ANDERSON, BLOUNT, DORSETT, MITCHELL & JERNIGAN, L.L.P.9
  10. 10. www.smithlaw.com Time Marches On • Timeframes very short. 4 C.F.R. § 21.2. – Improper solicitation? Protest before proposal deadline. – Other protests? Generally 10 days after basis of protest known – Size Protests? 5 working days after bid opening or after receipt of notification of awardee (for RFPs and RFQs) • Timeframes to request debriefing very short. – 3 days after notice of exclusion from competition or notice of contract award. 48 C.F.R. §15.505. ©2010 SMITH, ANDERSON, BLOUNT, DORSETT, MITCHELL & JERNIGAN, L.L.P.10
  11. 11. www.smithlaw.com Where do I file? • Agency. • Government Accountability Office/Comptroller General. • Court of Federal Claims. • Agency, who forwards to the SBA (for size protests). ©2010 SMITH, ANDERSON, BLOUNT, DORSETT, MITCHELL & JERNIGAN, L.L.P.11
  12. 12. www.smithlaw.com Agency Protest • Least formal, least expensive • Protester can request an independent review of the merits of its agency protest at a level above the CO. 55.103(d)(4). • Note: agency protest does extend deadline for filing GAO protest, but review of the protest does not extend deadline. 33.103(d)(5); 4 C.F.R. 21.2(a)(3) ©2010 SMITH, ANDERSON, BLOUNT, DORSETT, MITCHELL & JERNIGAN, L.L.P.12
  13. 13. www.smithlaw.com Agency Protest • Format: – State prominently it is a “protest” – Addressed to Contracting Officer or designated official – Detailed fact and legal statement, including how protester has been harmed – Copies of relevant documents – A showing that the protest is timely – A showing that the protester an “interested party” – A request for ruling and a statement of the requested relief. FAR 33.103(d) ©2010 SMITH, ANDERSON, BLOUNT, DORSETT, MITCHELL & JERNIGAN, L.L.P.13
  14. 14. www.smithlaw.com Agency Protest • Relief – Before award: correct the deficiency – After award: • Void contract (rare) • Terminate Contract for Convenience • Permit Award to stand • Direct a Re-evaluation • Award cost of pursuing protest, including fees. FAR 33.102; 4 C.F.R. Section 21.8 ©2010 SMITH, ANDERSON, BLOUNT, DORSETT, MITCHELL & JERNIGAN, L.L.P.14
  15. 15. www.smithlaw.com GAO (Comptroller General) Protests • Procedures: 31 U.S.C. 3551; 4 CFR 21. • Strict timing deadlines – Comply or risk dismissal – File before GAO’s close of business, or the protest will be dated the next day (important for pre-award protests) – File Before bid opening for solicitation improprieties – Within 10 days after protest basis known for any other basis. – Within 10 days after debriefing (when requested) • Must send copy to agency within one day after filing within GAO. 4 C.F.R. 21.1(e) ©2010 SMITH, ANDERSON, BLOUNT, DORSETT, MITCHELL & JERNIGAN, L.L.P.15
  16. 16. www.smithlaw.com GAO (Comptroller General) Protests • A Protest Can Stay of the Contract (absent compelling circumstances): – Protest before award prohibits agency from awarding contract. – Protest within 10 calendar days of award or within five days after a debriefing date is offered to the protester, the Contracting Officer must suspend contract performance or terminate the contract. • Notice must come from the GAO, not the protester. ©2010 SMITH, ANDERSON, BLOUNT, DORSETT, MITCHELL & JERNIGAN, L.L.P.16
  17. 17. www.smithlaw.com GAO (Comptroller General) Protests • Content similar to Agency protests, and can ask for: – a protective order, – written document discovery, and – a hearing • Detailed statement of facts (not speculation) • After receipt, GAO will contact agency and ask for a detailed report and documents. 4 C.F.R. 21.3(a). • Agency report due within 30 days of GAO’s notice. Copies must go to protestor and intervenors. ©2010 SMITH, ANDERSON, BLOUNT, DORSETT, MITCHELL & JERNIGAN, L.L.P.17
  18. 18. www.smithlaw.com GAO (Comptroller General) Protests • GAO can hold a hearing, though these are rare. • Decision is issued within 100 days of date of filing of the protest with the GAO. 4 C.F.R. 21.9(a). • Remedies: – GAO makes recommendations: • Refrain from exercising options under contract, recompete, issue a new solicitation, terminate, award a contract that complies with the law, or any of the above. – Costs may be awarded to the protester ©2010 SMITH, ANDERSON, BLOUNT, DORSETT, MITCHELL & JERNIGAN, L.L.P.18
  19. 19. www.smithlaw.com GAO (Comptroller General) Protests • Agency has 60 days to implement recommendations or report failure to comply • Contracting Agency has “sound discretion” to remedy the procurement impropriety that formed the basis of the GAO recommendation. ST Aerospace Engines Pte. Ltd. B-275725, B- 275725.3 (1997). ©2010 SMITH, ANDERSON, BLOUNT, DORSETT, MITCHELL & JERNIGAN, L.L.P.19
  20. 20. www.smithlaw.com Court of Federal Claims Protests • Only court forum (versus agency forum) to pursue a preaward or postaward protest. 28 U.S.C. 1491(b). • Party can file with COFC after bringing a GAO protest or instead of the GAO protest • COFC not bound by GAO decision, but it is given deference. ©2010 SMITH, ANDERSON, BLOUNT, DORSETT, MITCHELL & JERNIGAN, L.L.P.20
  21. 21. www.smithlaw.com Court of Federal Claims Protests • No automatic stay: protestor must move for a temporary restraining order. • COFC will hold an initial status conference • Protective Orders may be sought to protect confidential information from disclosure. • Depositions and discovery is allowed. • Summary judgments or “paper trials” are typical ©2010 SMITH, ANDERSON, BLOUNT, DORSETT, MITCHELL & JERNIGAN, L.L.P.21
  22. 22. www.smithlaw.com Court of Federal Claims Protests • COFC must decide whether agency’s actions were arbitrary, capricious, and abuse of discretion, or otherwise violative of the law • Protestor must show: – “Significant error” in the procurement process – Error resulted in “competitive prejudice” to the protestor: without the error, there was a “substantial chance” the protestor would have won the award. Alfa Laval Separation, Inc. v. United States, 175 F.3d 1365 (Fed. Cir. 1999). ©2010 SMITH, ANDERSON, BLOUNT, DORSETT, MITCHELL & JERNIGAN, L.L.P.22
  23. 23. www.smithlaw.com Size Protests • A Business is “other than small” for a particular size standard set out in the procurement. 13 C.F.R. 121.1001 through 121.1007. • Protest filed with contracting officer. CO will forward to SBA. 13 CFR 121.1003. • Protest must be in writing specify reason and present evidence for claiming business is “other than small”. ©2010 SMITH, ANDERSON, BLOUNT, DORSETT, MITCHELL & JERNIGAN, L.L.P.23
  24. 24. www.smithlaw.com Size Protests • SBA has 10 days to make size determination and notify contracting officer unless the SBA obtains more time. FAR 19.302. • SBA may ask challenged business for more information; failing to provide may result in an “other than small” determination. 13 CFR 121.1008(d). • Results of size determinations are entered into SBA database. ©2010 SMITH, ANDERSON, BLOUNT, DORSETT, MITCHELL & JERNIGAN, L.L.P.24
  25. 25. www.smithlaw.com Protest Basis: Timeliness • Case Study: Ball Aerospace (2010). – Air Force RFQ’d a Blanket Purchase Agreement: • RFQ for services; some on a fixed price and some hourly. • RFQ but did not require vendors to estimate number of hours needed to perform requirements in statements of work. • RFQ required vendors to provide pricing based on unit pricing only. – AT&T’s price was 57% lower; Ball complained the evaluation of vendor’s price and technical quotes was flawed. – Result: Protest Denied as untimely. • Agency Must Evaluate Proposals considering cost the government. • But, a post-award challenge to the evaluation scheme is untimely. – GAO Protest B-402148 (Jan. 25, 2010). ©2010 SMITH, ANDERSON, BLOUNT, DORSETT, MITCHELL & JERNIGAN, L.L.P.25
  26. 26. www.smithlaw.com Protest Basis: Non-Responsive Bids • Case Study: Irving Burton (2010). – Task Order Proposal Request from Army said: • proposals limited to 30 single-sided pages. • attachments limited to 10 single-sided pages each. – Winner’s Proposal Exceeded the Page Limits. – Result: Protest Sustained. • Agency Should Have Evaluated Proposal After Removing the Excess Pages. – In re: Irving Burton Associates: GAO Protest B-401983.3 (Mar. 29, 2010). ©2010 SMITH, ANDERSON, BLOUNT, DORSETT, MITCHELL & JERNIGAN, L.L.P.26
  27. 27. www.smithlaw.com Protest Basis: OCI • Case Study: CACI (2011). – OCI claim related to DoD RFP for Records System: • BAH’s proposal $9.7 MM, almost $3MM than CACI’s. • CACI claimed BAH had access to CACI confidential information when BAH was a “support contractor” for the DPRIS system. • Contracting officer determined that BAH did not have “unequal access to information” that gave an unfair advantage. – Result: Protest Overruled. • CACI could point to no specific information that would have given BAH an unfair advantage in competing for the award. • CACI could not show that BAH improperly obtained confidential CACI information: CACI should have controlled its own information. – In re: CACI, inc.: GAO Protest B-403064.2 (Jan. 28, 2011). ©2010 SMITH, ANDERSON, BLOUNT, DORSETT, MITCHELL & JERNIGAN, L.L.P.27
  28. 28. www.smithlaw.com Authority to Change Contract • Only contracting officer may enter into, administer, amend or terminate contracts. – FAR 1.601(a). – DFAR 252.201-7000(b). • Changes that are not in writing and approved by Contracting Officer might not be enforced. ©2010 SMITH, ANDERSON, BLOUNT, DORSETT, MITCHELL & JERNIGAN, L.L.P.28
  29. 29. www.smithlaw.com Authority to Change Contract • Case Study: CATH-dr/Balti Joint Venture (2007). – Construction project for the Navy. – Contractor told to: • Direct all suggested changes to the Resident Officer in Charge of Contracts, who also was the Project Manager. • Perform no work outside the contract without written authorization from the ROICC/PM. – Court: ROICC/PM was not the Contracting Officer and therefore could not change construction contract. – CATH-dr/Balti Joint Venture, 497 F.3d 1339 (Fed. Cir. 2007). ©2010 SMITH, ANDERSON, BLOUNT, DORSETT, MITCHELL & JERNIGAN, L.L.P.29
  30. 30. www.smithlaw.com Debriefings • FAR encourages debriefings. – Often changes protest deadlines – Encourages talking between bidders and agencies – Helps to improve future bids. • Always request a timely debriefing – In writing to CO within three days of award – Use information for future procurements or a bid protest • Even if untimely, ask for a debriefing. ©2010 SMITH, ANDERSON, BLOUNT, DORSETT, MITCHELL & JERNIGAN, L.L.P.30
  31. 31. Questions? Jackson Moorejmoore@smithlaw.com (919) 821-6688 www.smithlaw.com ©2010 SMITH, ANDERSON, BLOUNT, DORSETT, MITCHELL & JERNIGAN, L.L.P.

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