Current Trends in Federal Bid Protests
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Transcript Current Trends in Federal Bid Protests
Current Trends in
Federal Bid Protests
National 8(a) Association Meeting
October 30, 2013
Rick Oehler
Lee Curtis
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/
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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
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GAO: Cases Filed
+5%
+2%
2500
+16%
+20%
2,299
2000
+17%
1500
-9%
-2%
2,353
2,475
1,989
Cases Filed
+6%
1,652
1,356
1,326
FY05
FY06
1,411
1000
500
0
FY07
FY08
FY09
FY10
FY11
FY12
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Bid Protests – Overview
CHARACTERISTICS OF FEDERAL
PROCUREMENT 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
5
Bid Protests – Overview
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
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Bid Protests – Overview
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)
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Bid Protests – Overview
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
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Bid Protests – Overview
PROTESTS CAN BE MADE AT MANY
DIFFERENT 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)
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Bid Protests – Overview
REALITY NO. 1 – A FORMAL PROTEST IS NOT
THE PREFERRED APPROACH TO MOST
ISSUES
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
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Bid Protests – Overview
ALTERNATIVE – 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
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Bid Protests – Overview
REALITY NO. 2 – SOMETIMES A FORMAL
PROTEST IS THE ONLY WAY TO PROTECT
YOUR 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
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Bid Protests – Overview
REALITY NO. 3 – TO MAKE INTELLIGENT
DECISIONS ABOUT WHETHER TO FILE A
PROTEST, YOU HAVE TO KNOW –
Federal procurement process rules
Bid protest process rules
Deadlines are VERY TIGHT!
Your own objectives in filing a protest
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Bid Protests – Overview
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
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Bid Protests – Overview
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
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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
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Bid Protests – Debriefings
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
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Bid Protests – Debriefings
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
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Bid Protests – Debriefings
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
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Bid Protests – Debriefings
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
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Bid Protests – Debriefings
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
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Bid Protests – Debriefings
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
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Bid Protests – Debriefings
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
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Bid Protests – Debriefings
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
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Bid Protests – Debriefings
DEBRIEFINGS OF THE AWARDEE
Authorized by regulation
Potentially useful to –
learn how to improve proposal/ratings
help defend against a protest
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Bid Protests – Debriefings
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
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Bid Protests – Small Business
Types covered:
Size Protests
Affiliation/Ostensible Subcontractor
Area Office Determinations and OHA Appeals
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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
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SIZE PROTEST (cont'd)
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
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Bid Protests – Small Business
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
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Bid Protests – Small Business
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)
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Bid Protests – Small Business
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).
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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).
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Ostensible Subcontractor Rule
13 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
34
Ostensible Subcontractor Rule
13 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
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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.
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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.
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Bid Protests – Alternatives
PROTESTS CAN BE PURSUED WITH –
Contracting Officer
Procuring Agency
Government Accountability Office (GAO)
Court of Federal Claims (CFC)
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Bid Protests – Alternative Forums
Interested
Parties
Agency
Court of Appeals
for Fed Circuit
GAO
Court of
Federal
Claims
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Bid Protests – Alternatives
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
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Bid Protests – Alternatives
PROCURING AGENCY FILING
DEADLINES
Same as GAO – discussed later
Check individual agency rules
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Bid Protests – Alternatives
GAO
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
42
Bid Protests – Alternatives
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).
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Bid Protests – Alternatives
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
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CICA Stay - FAR 33.104(c)(1)
Notice to
Agency by
the GAO
Contract
Award
10 days
or
5 days
Offered Debrief Date
and Debrief is required
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GAO
Timeline: GAO Post-Award Protest and
Agency CICA Stay
Protester Comments
§ 21.3(i);
Basis known
or should
have known
or debrief
date
Protest Filed
at GAO, §
21.2(a)(2)
0
Supplemental
Grounds?
25
30
40
Potential for
Hearing
50
70
100
10 days
Agency
Document
List
§ 21.3(c)
AGENCY - CICA
Agency
Report
§
21.3(c)
Agency
Response to
Supplemental
§ 21.3(c)
GAO Decision
§ 21.9
GAO
Notice
Contract
Award, or
10 days
Debrief
Date
Offered to
Protestor
5 days
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GAO:
Merit Decisions and Protests Sustained
23%
29%
27%
21%
18%
19%
16%
18.6%
47
Bid Protests – Alternatives
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
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Bid Protests – Alternatives
THE OPTIMAL FORUM – WILL VARY
DEPENDING ON STAGE IN PROCESS,
TYPE OF ISSUE INVOLVED, GOALS AND
RESOURCES 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
49
Bid Protests – Standing
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"
50
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.
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Bid Protests – Typical Issues
Source selection decisions
Past performance evaluations
Discussions
Conflicts of interest
52
Bid Protests – Typical Issues
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
53
Bid Protests – Typical Issues
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
54
Bid Protests – Typical Issues
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)
55
Bid Protests – Typical Issues
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
56
Bid Protests – Intervening
Why the awardee may want to
intervene
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
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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
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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
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Questions or comments, please
write, call or email:
Rick Oehler
Perkins Coie LLP
1201 Third Avenue, 40th Fl.
Seattle, WA 98101-3099
(206) 359-8419
(202) 654-6367
[email protected]
Lee Curtis
Perkins Coie LLP
700 13th Street, N.W., Suite 600
Washington, D.C. 20005-3960
(202) 434-1647
[email protected]
28011700.1
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