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Protests
What if. . .
ProtestsDisappointed contractorsCompetitive rangeAward
ChoicesContracting AgencyComptroller General (GAO)Court of
Federal Claims
Reasons for
ProtestImproprieties in the SystemBreaking the rulesDarleen
Druyun issueChanges in requirementsImproper contactRelease
of informationAward or Cancellation
Who can
file?Interested PartyActual participantDirect economic interest
Agency – 10 daysGAO – 10 daysCoFC -- ??
Contracting
AgencyLeast FormalLeast expensiveQuickest
All parties are directed to try and handle at this level
Fox guarding the hen-house?
What must
be in it?Statement of legal groundsCopies of documentsProof of
standingPositive request for rulingRequest for specific relief
Who
decides?Contracting OfficerWritten determinationProtest
DecisionProtestor may request independent reviewOne level
higher than CO
10 DaysConstructive notice
RemediesBefore awardNo award may be madeUrgent and
compellingCorrective actionAfter awardSuspend performance35
day decisionT for CLet stand (best interest of Govt)
Comptroller
GeneralMore FormalMore expensiveTakes longer
Must follow specific steps in regulations
Fox guarding the hen-house or wait and spend
What must
be in it?Name of ProtestorContracting agencyStatement of legal
groundsCopies of documentsProof of standingProof of
timelinessPositive request for rulingRequest for specific relief
Timing10 days after constructive notice3 days after
debriefBefore bid opening if a protest of solicitation
More on
TimingProtestGAO notifies CO 1dayCO responds 30 days (20
express)Comments on Report 10 (5 express)
Total time 100 days (65 express)
Who
Decides?Committees of attorneysSingle individual if
simpleWritten determinationProtest DecisionRequest for
reconsideration10 days
RemediesBefore awardNo award may be madeUrgent and
compellingBest InterestCorrective action
Outcome PredictionNegotiation assistance
RemediesAfter awardSuspend performanceNo optionsIssue new
solicitationTerminateFix contractAny other thing the GAO
decides
Court of
Federal ClaimsMost FormalMost expensiveTakes longest
Must follow specific steps in regulationsSole judicial
forumMust provide pre-filing notice
What must
be in it?Filing of complaintRelief soughtMotion for suspension
of awardSupportMotion for protective order
TimingNo real deadlineBut we want help!Initial status
conferenceIdentification of parties and standingRequests for
injunctive reliefProtective order Schedule for filingsSchedule
for proceedings
DiscoveryDepositionsFurther discoveryReveal evidenceLimited
in nature
Who
Decides?JudgeSingle individual if simpleWritten
determinationProtest DecisionRequest for reconsideration
CoFC10 daysAppeal to the U.S. Court of Federal Appeals
(procedural not factual)60 days
Basis for
findingSubjective bad faithNo reasonable basis for
decisionAbuse of discretionViolation of statute or regulation
Burden of Proof is on protestorSignificant errorCompetitively
prejudiced
RemediesDeclaratory JudgmentInjunctive reliefClear and
convincing evidenceMerits of caseIrreparable harmOutweighs
harm to govt and third partyPublic interestRecovery of
B&PRecovery of other costsRecovery of Legal fees

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ProtestsWhat if. . . ProtestsDisappointed contra.docx

  • 1. Protests What if. . . ProtestsDisappointed contractorsCompetitive rangeAward ChoicesContracting AgencyComptroller General (GAO)Court of Federal Claims Reasons for ProtestImproprieties in the SystemBreaking the rulesDarleen Druyun issueChanges in requirementsImproper contactRelease of informationAward or Cancellation Who can file?Interested PartyActual participantDirect economic interest Agency – 10 daysGAO – 10 daysCoFC -- ?? Contracting AgencyLeast FormalLeast expensiveQuickest All parties are directed to try and handle at this level
  • 2. Fox guarding the hen-house? What must be in it?Statement of legal groundsCopies of documentsProof of standingPositive request for rulingRequest for specific relief Who decides?Contracting OfficerWritten determinationProtest DecisionProtestor may request independent reviewOne level higher than CO 10 DaysConstructive notice RemediesBefore awardNo award may be madeUrgent and compellingCorrective actionAfter awardSuspend performance35 day decisionT for CLet stand (best interest of Govt) Comptroller GeneralMore FormalMore expensiveTakes longer Must follow specific steps in regulations Fox guarding the hen-house or wait and spend What must
  • 3. be in it?Name of ProtestorContracting agencyStatement of legal groundsCopies of documentsProof of standingProof of timelinessPositive request for rulingRequest for specific relief Timing10 days after constructive notice3 days after debriefBefore bid opening if a protest of solicitation More on TimingProtestGAO notifies CO 1dayCO responds 30 days (20 express)Comments on Report 10 (5 express) Total time 100 days (65 express) Who Decides?Committees of attorneysSingle individual if simpleWritten determinationProtest DecisionRequest for reconsideration10 days RemediesBefore awardNo award may be madeUrgent and compellingBest InterestCorrective action Outcome PredictionNegotiation assistance RemediesAfter awardSuspend performanceNo optionsIssue new solicitationTerminateFix contractAny other thing the GAO
  • 4. decides Court of Federal ClaimsMost FormalMost expensiveTakes longest Must follow specific steps in regulationsSole judicial forumMust provide pre-filing notice What must be in it?Filing of complaintRelief soughtMotion for suspension of awardSupportMotion for protective order TimingNo real deadlineBut we want help!Initial status conferenceIdentification of parties and standingRequests for injunctive reliefProtective order Schedule for filingsSchedule for proceedings DiscoveryDepositionsFurther discoveryReveal evidenceLimited in nature Who Decides?JudgeSingle individual if simpleWritten determinationProtest DecisionRequest for reconsideration CoFC10 daysAppeal to the U.S. Court of Federal Appeals
  • 5. (procedural not factual)60 days Basis for findingSubjective bad faithNo reasonable basis for decisionAbuse of discretionViolation of statute or regulation Burden of Proof is on protestorSignificant errorCompetitively prejudiced RemediesDeclaratory JudgmentInjunctive reliefClear and convincing evidenceMerits of caseIrreparable harmOutweighs harm to govt and third partyPublic interestRecovery of B&PRecovery of other costsRecovery of Legal fees