The tools you need to get the contracts you want

1. Debriefing and Protests
The Tools You Need to Get the
Contracts You Want
Presented by:
Tan. V. Wilson, PMP
Maria L. Panichelli. Esq.

2. Meet the Presenters
Tan V. Wilson, PMP
Entellect, LLC
Maria L. Panichelli, Esq.
Cohen Seglias Pallas Greenhall & Furman PC
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3. Protests: A Primer
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4. Types of Protests
Bid Protest:
• Another contractor’s challenge of the procedures or process
used during the bidding, source selection, evaluation and
contract award process. Relates to a particular contract.
Size Protest:
• Another contractor’s challenge concerning the size of a small
business in relation to a specific contract (can sometimes lead
to Size Determination).
Status Protest:
• Another contractor’s challenge concerning the status of a small
business in relation to a specific contract (can lead
Status/Eligibility Investigation).
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5. What Law Governs the Bidding and Award
Process?
The Federal Acquisition Regulation (“FAR”) was established
for the codification and publication of uniform policies and
procedures for acquisition by all executive agencies
Supplemental Agency Regulations, such as…
• Defense Federal Acquisition Regulation Supplement (DFARS)
• Army Federal Acquisition Regulation Supplement (AFARS)
• Engineer Federal Acquisition Regulation Supplement (EFARS)
SBA / VA Small Business Program Regulations
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6. How Does the Bidding and Award Process
Work?
Key Considerations:
• What Agency?
• What type of Contract? Set-aside? IDIQ Task
Order?
• What type of procurement?
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7. Protests in Context:
The Procurement Process
• Solicitation → Pre-Award Protests based on errors in the
solicitation
• Source Selection
– Did Source Selection involve Competitive Range? Pre-award
notices of exclusion from competitive range → Pre-Award
Debriefings & Protests based on exclusion from
Competitive Range
– Was the Procurement at Issue a Small Business Set Aside?
Notice of Proposed Award → Small Business Size or Status
Protests
• Notice of Award → Post-Award Debriefings Protests
• (… Protest Litigation process)
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8. Bid Protests: Why Protest?
Pre-Award Solicitation Issues
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Common Pre-Award Solicitation Protest Issues:
• Patent Error/Unclear or Ambiguous (“Bid it as you
see it”)
• Improper Exclusion of Required Provisions/Inclusion
of Inapplicable Provisions
• Unduly Restrictive (CICA violation)
• Unreasonable Evaluation Method(s)
What about Non-Solicitation Based Pre-Award Issues?

9. Bid Protests:
Pre-Award Exclusion Notices
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Pre-Award Notice [FAR 15.503(a)(1)]:
Pre-award notices of exclusion from competitive range
• The contracting officer shall notify offerors promptly
in writing when their proposals are excluded from
the competitive range or otherwise eliminated from
the competition. The notice shall state the basis for
the determination and that a proposal revision will
not be considered.
Debriefing must be requested, in writing, within 3 days
of receipt

10. Bid Protests:
Post-Award Exclusion Notices
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Post-Award Notice [FAR 15.503(b)(1)]:
Post-award notices of award to other offeror
• Within 3 days after the date of award, the contracting officer
shall notify unsuccessful offerors of such award and the notice
must state
– The number of offerors solicited;
– The number of proposals received;
– The name and address of each offeror receiving an award;
– The items, quantities, and any stated unit prices of each award;
and
– In general terms, the reason(s) the offeror’s proposal was not
accepted.
Debriefing must be requested, in writing, within 3 days of receipt

11. Debriefings
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12. Background - Debriefing Basics
Why?
• Learn more about the circumstances of the award
• Garner lessons learned to improve process/materials for future proposals
• Determine if a protest is warranted or clear up any possible misunderstandings
When?
• Formal debriefing rules in FAR 15.505/15.506 specify timing and content of
debriefings
• Offeror must request a debrief within 3 days after receipt of the notice of
exclusion from competition (request oral debrief/discussions if written materials
were provided)
• Debriefings affect timing for filing bid protests and obtaining GAO’s “automatic
stay” of contract award and performance
What?
• Debriefing rules apply only to FAR Part 15 negotiated procurements; other
types of competitive procedures require only limited disclosure of evaluation
information, as noted in FAR 8.405-2(d)
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13. Debriefing from the Government Perspective
• The Government is required to provide debriefings, but many (not all) view
them as an unpleasant task
– Disappointed offerors are loading up for protests; debriefings can be contentious
– Legal Department is watching over contracting team to ensure they do not say or
do anything that could cause issues
– The goal is to help contractors learn so they may do better next time
• To limit potential protests, Government will clearly explain that proposal was
evaluated fairly in accordance with solicitation evaluation process/criteria, and
that all rules were followed
• Experienced Contracting Officers (COs/KOs)
– More comfortable in this setting and, thus, will be more open in their
communications
– Understand that, the more informative the debriefing, the better the likelihood that a
contractor will provide a competitive proposal next time around, will compete for
other opportunities from that Government organization, and will improve the value
they bring to that Government organization
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14. Debriefing from the Government Perspective
• Less-experienced COs/KOs will be very perfunctory in their communications
and cautious to not say anything they are not allowed
• All COs/KOs are leery of upset, disappointed, and potentially combative
contractors
• Better Bid = Lower Protest Risk: First Goal of a KO
– They expect tough, pointed, and probing questions to unearth whether the
Government made errors in source selection
– They will quite often start the meeting with their guard up in case the disappointed
company has come to argue
– The lower their guard, the better depth and quality of information you are likely to
receive
– They try to show they did it correctly to avoid any ‘gotchas’
– They may be defensive at suggestions they have made mistakes
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15. Information Prohibited by FAR 24.202 or
Exempt Under FOIA 5 U.S.C. 552
• Trade secrets
• Information classified as secret in the interest of national defense or foreign
policy
• Information related solely to the internal personnel rules and practices of an
agency
• Commercial and financial information stated or deemed privileged or
confidential-- cost breakdown structures
• Personnel and medical information that would constitute a clearly unwarranted
invasion of personal privacy when disclosed
• Privileged or confidential manufacturing processes and techniques
• Commercial and financial information that is privileged or confidential, including
cost breakdowns, profit, indirect cost rates, and similar information
• Names of individuals providing reference information about an offeror’s past
performance
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16. Pre-Award Debriefing [FAR 15.505(e)]
At a minimum, the pre-award debriefings must include:
• The agency’s evaluation of significant elements in the
offeror’s proposal;
• A summary of the rationale for why the offeror was not
selected for an award; and,
• Reasonable responses to relevant questions about
whether source selection procedures contained in the
solicitation, applicable regulations, and other applicable
authorities were followed in the process of eliminating the
offeror from the competition.
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17. Post-Award Debriefing [FAR 15.506(d)]
At a minimum, the post-award debriefing must include:
• The Government’s evaluation of the significant weaknesses or
deficiencies in the offeror’s proposal
• The overall evaluated cost or price (including unit prices) and technical
rating of the successful offeror and the debriefed offeror, and past
performance information on the debriefed offeror
• The overall ranking of all offerors, when any ranking was developed
by the Agency during the source selection
• A summary of the rationale for award
• For acquisitions of commercial items, the make and model of the item
to be delivered by the successful offeror
• Reasonable responses to relevant questions about whether source
selection procedures contained in the solicitation were followed
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18. Strategies for Successful Debrief
• Request a formal oral or written debrief
– Agencies are trending to written debriefings in lieu of in-person debriefings
– Ask follow-up questions to written debriefs
– Accept the earliest available date for a debrief; protest and stay deadlines are
triggered from the date of a written debrief, as the contractor must file its
protest within 10 calendar days of award, or within five days of the first date
offered for the debrief, whichever is later
• Ensure receipt of debrief materials before the debrief session
• Formulate questions in advance, and prepare
• Make a strategic decision about attendees
• Make sure to follow professional debriefing etiquette
– Start and end with thank you’s
– Keep the tone cordial, light, and as conversationally informal as possible
• Listen for – and take note of – inconsistencies from the Government for
use in any potential protest, but do not address them during the debrief
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19. General Debrief Questions
• Who won?
• How many bids were received?
• What was your overall score (e.g ., numerical, adjectival, color, and
other ratings in accordance with solicitation Section M)?
• Was your score closer to the top or the bottom?
• What was the winner's score?
• Did the winner have a higher score on the technical evaluation
factors?
• Can we get a copy of the debriefing slides/documents?
• Can we get a list of Government attendee names and job titles?
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20. Winning Proposal Debrief Questions
• What were our major strengths and weaknesses?
• Why was the proposal the winning bid?
• What did you like/dislike about our Executive Summary?
• Where could we improve to score higher?
• Was our document visually appealing? How can we improve readability?
• What is your reaction to our thematic call-out boxes?
• Did you find our document easy to score? How can we improve to make it
easier to score?
• Did it matter that we chose not to use all allotted pages when responding?
• Given the page limitations, did we address the SOW/PWS in sufficient
detail?
• Did our resume/past performance format work for the evaluators?
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21. Debrief Questions if the Incumbent Won
• Did the incumbent score higher on the technical evaluation
factors?
• Did the incumbent score higher on experience or past
performance?
• Would a more clear statement that we would retain
incumbent staff have improved our score?
• Did the Government evaluate transition?
• Regarding Past Performance, did the incumbent contract
give them an unfairly elevated score on the rest of the
volume, or do they have other similar references?
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22. Cost/Price Debriefing Questions
• Did you score higher or lower than the winner on technical factors?
• Did you lose because your higher score on technical drove up the cost?
• Was the transition evaluated for cost? If so, was the incumbent credited for a zero
cost transition?
• If your price had been the same as the winner, would your proposal have
represented the best value?
• Did you scope the level of effort (number of people/hours) appropriately?
• Was the skill level of your proposed staffing too high?
• Did the winner propose more or less staff/hours? By how much?
• Did the Government conduct a price realism or price reasonableness assessment?
If not, why not. If so, did the our offer or the winning offer have any issues with
realism/reasonableness?
• Did the Government perform any should-cost adjustments to either our proposal or
the winning proposal? If so, what was the impact of that adjustment?
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23. You’ve Had Your Debriefing…
Now What?
The Who, What, When, Where, and Why
of Bid Protests
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24. Bid Protests:
Why Protest?
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Common Post-Award Protest Issues:
• Evaluation Issues
– Agency error in applying evaluation criteria
– Agency misinterpretation of proposal
– Conclusions with no rational basis in the record
– Disparate Treatment
– Flaws in “Trade-Off” Process
– Price issues ? (Realism? Reasonableness?)
• Inadequate, Misleading or “Uneven” discussions with Offerors
• Insufficient Documentation

25. Bid Protests:
Should You Protest?
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Key Considerations:
• Cost
• Likelihood of Success
– Not all protests are created equal
– Discretion v. Clear Error
• Practical Concerns: How might this affect
relationship with the client/agency?

26. Bid Protests:
Who Can Protest?
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“Interested Party” / Standing:
• Under the Tucker Act, an “interested party” is “an actual
or prospective bidder or offeror whose direct economic
interest would be affected by award of contract or by
failure to award contract”
– Were you next in line?
– Was the evaluation so flawed as to allow someone other
than the next in line to protest?
– Were you / should you have been eligible to compete?
– Seems like an easy issue, but can get very complicated

27. Bid Protests:
Where Can You File Your Protest?
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Three Main Options for Straight Bid Protests:
• Contracting Officer (Agency)
• U.S. Government Accountability Office (“GAO”)
• U.S. Court of Federal Claims (“COFC”)

28. Bid Protests:
What Do You Need to Include In Your Protest?
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Filing requirements regarding format depend on protest
forum:
• Agency, GAO: usually a letter is sufficient
• COFC - Formal (verified) complaint. And, if seeking a stay,
injunctive relief packet (PI, TRO, MOL, Affidavits, etc.)
Specificity is key!
• Specific allegations regarding what, exactly, you allege was a
procurement error
• You need more than speculation (admittedly tough balance
when all you have is the debriefing…)

29. Bid Protests:
When Do You Need to File Your Protest?
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• Deadlines Vary Depending on Protest Forum and Type
of Protest – Remember the Protest Process
• “Know or Should Have Known” Standard
• Do you want a “Stay”?
• Bid Protest Timelines are complicated and nuanced and
firm and strict -- You will NOT be granted ANY leeway if
you are late!
Best practice advice? Call an expert as soon as you
receive the applicable notice!

30. Questions?
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31. Contact Information
Tan V. Wilson, PMP
President
tanwilson@entellectllc.com
703.489.947
www.entellectllc.com
www.linkedin.com/in/tanwilsonpmp
@TVWilson
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Maria L. Panichelli, Esquire
Partner
mpanichelli@cohenseglias.com
215.564.1700
www.cohenseglias.com
www.linkedin.com/in/mariapanichelli
@MariaPanichelli