From PLI's Online Program Government Contracts ... · #24691 . Government Contracts:Government Contracts: Understanding the Bid PttPProtest Process A 20 2009August 20, 2009 Presented

From PLI's Online ProgramGovernment Contracts: Understanding the Bid Protest Process #24691

Government Contracts:Government Contracts:Understanding the Bid

P t t PProtest Process

A 20 2009August 20, 2009

Presented by Eric W. Leonard

andJon W. BurdJon W. BurdWiley Rein, LLP

These slides are accompanied by an oral presentation and are not to be relied upon for legal advice.

What is a “bid protest”?What is a bid protest ?• Helps ensure integrity of the procurement process by providing interested

parties an opportunity to enforce competition requirements• Government Accountability Office or Agency-Level Protest (FAR pt. 33):

Written objection by interested party to:– Solicitation for “procurement” of goods or services– Cancellation of solicitation– Award or proposed award of a contract– Termination of contract, if based on award impropriety, p p y

• U.S. Court of Federal Claims: “protest” jurisdiction extends more broadly to “an action by an interested party objecting to”:

– a solicitation for bids or proposals for a proposed contracta solicitation for bids or proposals for a proposed contract– a proposed award or the award of a contract– any alleged violation of statute or regulation in connection with a

procurement or a proposed procurement

August 20, 2009 Page 2Wiley Rein LLP

procurement or a proposed procurement

To Protest or Not to Protest: Business Considerations• Sue the customer?Sue the customer?

– Different company philosophies on protests– Agency planning in major procurements must take into account

lik lih d f t tlikelihood of protest

• Achievable objective(s)?Get the contract– Get the contract

– Maintain incumbent contract in interim• “Stay” of award or performance under Competition in Contracting

A tAct– Recover B&P costs– Make a point


– Shift blame for loss (CYA)

Available Fora• Contracting Agency

• Government Accountability Office (GAO)

• Court of Federal Claims (COFC)Court of Federal Claims (COFC)

• Special ForaF d l A i ti Ad i i t ti ODRA (FAA TSA)– Federal Aviation Administration ODRA (FAA, TSA)

– USPS (No GAO jurisdiction)

• Congress (?)• Congress (?)


Who May Protest?Who May Protest?• Protester must be an “interested party”: Actual or

prospective offeror . . . whose direct economic interest would be affected by award or failure to award contract”

P d P ti ff ith di t i– Pre-award – Prospective offeror with direct economic interest• Solicitation errors or ambiguities• Challenges to elimination from competitive range

– Post-award – Actual offeror with direct economic interestT i ll i l d t l ff b t i• Typically includes any actual offeror, but in some cases an offeror may be too far down the ranking, unless protest issues affect all higher-rated offerors


Who Else May Participate?y p• GAO:

– “Intervenor” (Awardee if award has been made; all offerors with a “substantial prospect of award,” if no award yet made) • Other losing parties may not intervene. Must file separate

protest– Agency counsel– Outside and (sometimes) in-house counsel and consultants (subject

to protective order access and restrictions)p )• COFC

– Awardee split of authority: Intervention vs. AmicusDOJ Counsel w/ assistance from Agency Counsel– DOJ Counsel w/ assistance from Agency Counsel

• Agency– Intervention not addressed


– CO or “Level above the CO”

What Issues May Not Be Raised:y• Contract Administration• SBA Set-Asides or Size Standards

B t h ll d ’ lifi ti f ll– But can challenge awardee’s qualification for a small business set-aside under FAR 19.302

• Affirmative responsibility determinations (Exceptions)• Procurement integrity violation, unless within 14 days of

discovery & notice to CO• Subcontractor protestsSubcontractor protests • Non-Federal Agencies (USPS, FDIC, NAFIs) • Limited protest opportunities for Task Orders under Multiple

Award IDIQ contracts– NDAA 2008, Sect. 843– GAO authorized to exercise jurisdiction over protests of


GAO authorized to exercise jurisdiction over protests of task order awards > $10 million

What Issues May Be RaisedWhat Issues May Be Raised• Finding the right “hook”

Solicitation concerns (restrictive specifications; unlawful evaluation– Solicitation concerns (restrictive specifications; unlawful evaluation factors) (must be raised prior to submission of final proposal)

– Failure to solicit or use competitive processes• Out-of-Scope Mods• Unreasonable justification for sole-source award

– Evaluation or award issues• Use of undisclosed criteria/failure to follow Section M

U bl t/ i li l i• Unreasonable cost/price realism analysis• Unequal treatment• Lack of meaningful or unequal discussions• Unreasonable finding of equivalence or failure to justify awardUnreasonable finding of equivalence or failure to justify award

– Organizational Conflicts of Interest• Prevent conflicting roles (i.e., biased ground rules or impaired

objectivity)P t f i d t (i l t i f ti )


• Prevent unfair advantage (i.e., unequal access to information)

Other Issues That May Be RaisedOther Issues That May Be Raised• Difficult Issues to Sustain Protest

– Technical merit challenges• GAO and COFC will not “substitute” their own judgment

of the merits of a proposal for the agency evaluatorsof the merits of a proposal for the agency evaluators• Must demonstrate objective errors, not “mere

disagreement” over quality of proposal, magnitude of t th / k tstrengths/weaknesses, etc.

– Challenges to best value determination or other discretionary decisions

– Bias / Bad Faith

• Lack of effectiveness of “kitchen sink” protests


Timeliness: When Must a Protest Be Filed?• Agency/GAO (3-3-5-5 Rule): Suspension vs. Timeliness

S li it ti Ch ll Add i th “G d R l ” f th titi– Solicitation Challenges Addressing the “Ground Rules” of the competition: Prior to proposal due date

– Post-Award Suspension• Protest filed within 10 calendar days of contract award or within 5• Protest filed within 10 calendar days of contract award or within 5

calendar days of a “required” debriefing • “Required” debriefing under CICA• GAO reserves one day to provide notice to agency

• Wed. is most popular debriefing day• Note: In FAR Part 8 buys, debriefing is not required

– Post Award Timeliness• Within 10 calendar days after basis is known or should be known or

within 10 calendar days of “required” debriefing. – Challenge at GAO to adverse agency action on an agency level protest


• Within 10 days of actual or constructive knowledge of denial

When Must Protests Be Filed?When Must Protests Be Filed?• Agency/GAO Special Issues:

– Elimination from Competitive Range: Debriefing Options– Elimination from Competitive Range: Debriefing Options– “Significant Issue” Exception (Agency & GAO)– PIA Protests – Must first notify agency within 14 days– Sole-Source Procurements – Requires Timely Response to Notice of J&A– Amended Protests – 10 Days (even if comment period extended)

• Court of Federal Claims– No automatic suspension---must meet Preliminary Injunction standard

S li it ti Ch ll i lit f th it ith GAO tl t d– Solicitation Challenges: previous split of authority with GAO recently corrected to reflect similar rule---protests must be filed prior to submission of final proposal revision

– Six years limitations period (although injunctive relief requires much faster ti )action)

• Awardee Consideration– Seek awardee debriefing?– If anticipating protest, benefits of early debriefing


If anticipating protest, benefits of early debriefing

OverridesOverrides• Notwithstanding CICA stay of contract award or performance, the head of

t ti ti it th i f itt fi dicontracting activity may authorize performance upon a written finding:– Best Interests of the Government (GAO may not consider disruption in

fashioning remedy)– Urgent and Compelling Circumstances

• COFC Challenge– “Naked Override” vs. re-file protest at COFC– Declaratory Judgment/Injunction– For injunction Protester must show:– For injunction, Protester must show:

• Likelihood of success on the merits: “Arbitrary, capricious, an abuse of discretion, or otherwise not in accordance with law.”

• Irreparable injury• Balance of the harms• Balance of the harms• Public interest

– Split of authority on reviewability of “best interests” findings, but recent cases suggest they are subject to judicial review at COFC


Forum Selection: Rebuttable Presumption in Favor of GAO• Cost

• Suspension of award/performance

• Expertise• Expertise

• Uniformity/Predictability

• Possibility of more document discovery/possibility of hearing

• Sustain Rate/Success Rate


Reasons to Go to Agency/COFCg y

• Agencyg y– Pre-award challenge to RFP– Keep “in the family”

F d b i d i i f– Focus on good business decision for agency

• COFC– Stay overridey– Uncertain GAO jurisdiction– Lost at agency or GAO or failed to timely protest

Depositions(?)– Depositions(?)– Involvement of DOJ, vice agency counsel– Other considerations?


Litigating GAO Protestsg g• Authority: CICA (31 USC 3551-56); 4 CFR Pt. 21• Review standard: prejudicial violation of statute or regulation or

unreasonable/irrational decisions• Typical Protest format:

– Identify parties, contracting agency, solicitation no.– I. Summary– II. Interested Party– III Timeliness and Suspension– III. Timeliness and Suspension– IV. Factual Background– V. Information Learned at Debriefing– VI. Bases for Protest (Enumerate prejudice for each)– VII. Request for Documents (must identify relevance)– VIII. Request for Relief


Litigating GAO ProtestsLitigating GAO Protests• Protective Orders

– In house counsel may participate if not involved in competitive decision-making.

– Without counsel admitted, communications with client are often frustrating• Redactions

– Experts/consultants admitted subject to prospective prohibition on proposal preparation• Cost/Accounting Experts• Technical Experts

• Academics• Retired Industry / Government Personnel

– Copy Restrictions: E-mails; 3 copies


py ; p– Must vigilantly maintain documents; destruction 60 days after disposition

Litigating GAO ProtestsLitigating GAO Protests• Typical Schedule

il ( il d)– Day 0: File protest (e-mail now accepted)– Day 0 to Day 1: GAO Notice to agency (triggers stay if timely)– Day 0-25: Intervene, dismissal requests filed, PO issues addressed

If i t i ff i t t l (d ft l l t• If intervening, offer assistance to agency counsel (draft legal arguments; help limit document production; review underlying documents; draft/edit portions of Agency Report; prepare dismissal requests)

– Day 25: Agency list of documents it will produce with Agency Report• Strategic consideration of early production• Effects of multiple document productions

– Day 30: Agency Report filed and documents produced– Day 40: Protester/Awardee file comments/amended protest

• Supplemental protest due within 10 days of any document production– Supplemental briefing; Hearing; Post-Hearing Briefing


– Day 100: GAO Decision & “Recommendation” Due

Litigating GAO ProtestsLitigating GAO Protests• Alternative Dispute Resolution and Early Outcome Prediction at GAO• Corrective action• Remedies:

– GAO Corrective Action “Recommendations”– Refrain from exercising option; terminate contract; re-evaluate/re-compete; issue a

new solicitation; conduct discussions or consider revised proposals– Directed award or disqualification from re-competition rare– Protest costs, including reasonable attorneys fees (capped; small business

exception) – Bid and Proposal Preparation costs

A l?• Appeal?– Request for reconsideration– File a new protest at COFC


Litigating COFC ProtestsLitigating COFC Protests• Authority: Tucker Act & ADRA (28 USC 1491(b)); RCFC App. C• Review standard (APA) & POs are similar to GAO

D f ( lb i b l ) i i GAO d i i• Deference (albeit not absolute) is given to GAO decisions– If earlier-filed GAO protest is withdrawn prior to GAO decision, COFC may request “advisory

opinion” from GAO– If protest is filed at COFC, any earlier-filed protests at GAO brought by different protesters will

be dismissed forcing all protesters to the Courtbe dismissed, forcing all protesters to the Court

• Discovery: Review on AR before agency, which can be supplemented in some limited circumstances

• Typical schedule (only bench proceedings exist)yp ( y p g )– Day 0-1: Pre-filing notice to DOJ– Day 0: File Complaint, TRO/PI Motions, and other required papers– Days 1-5: Initial status conference and possibly TRO hearing

D 10 20 Fili f AR– Days 10-20: Filing of AR– Discovery if authorized– Days 30-90: Briefing on cross-motions for PI or under RCFC 56.1, Hearing

• Equitable Relief – 4-Factor Test, May win on merits and still not get meaningful


Equitable Relief 4 Factor Test, May win on merits and still not get meaningful relief

Litigating Agency Protestsg g g y• Authority: Executive Order 12979 (1995); FAR 33.103; Agency FAR

supplements• Review standard is similar to GAO• Discovery: “To the extent permitted by law and regulation, the parties

may exchange relevant information.”may exchange relevant information.– Discovery typically not conducted

• Intervention not addressed in regulation• Review is by CO or designated official at a level above the CO either as• Review is by CO or designated official at a level above the CO, either as

initial review or appellate review • Process

V i b lt A FAR l t– Varies by agency; consult Agency FAR supplement

– Must make “best efforts” to resolve w/in 35 days

• Agency not required to stay after protest denial; no new stay if new i l fil d GAO i hi 10 d f l l d i l


protest timely filed at GAO within 10 days of agency-level denial

Questions?

• Eric LeonardEL d@ il i– [email protected]

• Jon BurdJB d@ il i– [email protected]
