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ACQ 370

Protests. ACQ 370. Protest. Protest Defined A written objection to a solicitation or award of a contract Also includes objections to the cancellation of a solicitation or termination of a contract due to improprieties in making award. A protest is not a claim. Protest Process.

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ACQ 370

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  1. Protests ACQ 370

  2. Protest Protest Defined • A written objection to a solicitation or award of a contract • Also includes objections to the cancellation of a solicitation or termination of a contract due to improprieties in making award

  3. A protest is not a claim

  4. Protest Process

  5. Protest Process Who can file a protest?

  6. Protest Process • Only an “interested party” may protest a federal procurement • Actual or prospective offeror • Whose direct economic interest would be affected by the contract award • “Substantial chance” of receiving an award

  7. Protest Process To sustain a protest must prove: • The agency violated a statute or regulation and/or the agency’s action was unreasonable • And “but for agency violation”, there was a substantial chance that offeror would have been awarded the contract • Not “harmless error”

  8. Protest Before Award

  9. Protest Before Award Reasons to Protest: • Solicitation defects • Unduly restrictive of competition • Improper sole source procurement • Ambiguous or conflicting terms, or in violation of statute or regulation • Inadequate time to prepare bids/proposals • Improper bundling • Improper cancellation of solicitation • The Agency is attempting an out of scope change to an existing contract • Exclusion from Competitive Range

  10. Protest Before Award When to file: • Protest solicitation • Unless before bid opening or time designated for receipt of initial proposal • Protest exclusion from competitive range: within 10 days after basis of protest is known or should have been known • But, see FAR 15.505 • Applies to all forums (Agency, GAO, and Court)

  11. Protest Before Award Impact on Award • Agency must not award the contract, pending resolution of the protest • Unless justified in writing as urgent and compelling or in the best interest of the government

  12. Protest After Award

  13. Protest After Award Reasons to Protest • Best value determination was improper, unreasonable, or not in accordance with the evaluation criteria • Agency conducted improper cost/technical trade-offs • Used evaluation criteria that were not stated in the RFP • Failure to conduct meaningful discussions • The source selection authority failed to adequately document his/her source selection decision • Bias or bad faith in making award • Out of scope changes or specifications relief • Or the agency _________________ (insert reason here)

  14. Protest After Award Debriefings for Disappointed Offerors • Offerors must request debriefing in writing within 3 days of notice of award • Debriefing should occur within 5 days of the request

  15. Protest After Award When to file a Protest • Agency & GAO • No later than 10 days “. . .after the basis of protest is known or should have been known, whichever is earlier” • FAR 33.103 (e) - Agency • 4 C.F.R. § 21.2 - GAO • GAO • For competitive proposals: the initial protest shall not be filed before the debriefing date offered to the protester, but shall be filed not later than 10 days after the date on which the debriefing is held • Protesters are required to use theweb-basedelectronic bid protest filing and dissemination system (EPDS) to file new protests, and pay a $350 filing fee. • COFC • No time limit, but time diminishes value of any remedies

  16. FAR Guidance on Debriefing • Gov’t Answers • Additional • questions Schematic of Debriefing Timeline Shall 5 days 2days Should 5 days 3 days 3 days The PCO shall ensure offerors are debriefed, if requested, in accordance with FAR 15.505 (pre-award debriefings) and 15.506 (post-award debriefings), as applicable

  17. DOD Class Deviation 2018-O0011 – Enhanced Post Award Debrief Rights • “Contracting officers shall, consistent with the requirements of FAR § 15.506(d), include in the debriefing information provided to unsuccessful offerors language indicating that offerors may submit additional questions related to the debriefing within two business days after receiving the debriefing. • The agency must then respond to the questions in writing within five business days after receipt of the questions.

  18. Protest After Award Suspending Performance • Government must suspend performance • If protest filed within 10 days of award or within 5 days following debriefing date, whichever is later • Performance may continue if justified in writing as “urgent and compelling” or “in the best interests of government” • After deadline for suspension, but within deadline for protest • Protest is heard and decided, but no suspension of performance

  19. Choice of Forum

  20. Choice of Forum Start in any of the three GAO opinion is given deference * *If writ of certiorari is granted

  21. Choice of Forum The Contractor selects the forum • What factors influence the decision?

  22. Choice of Forum

  23. Choice of Forum GAO Process • Decisions rendered within 100 days or 65 days for express option • GAO decisions are recommendations; GAO lacks authority to order procuring agency • Agencies not choosing to implement GAO recommendation fully must notify GAO within 60 days • GAO reports all instances of agency refusal to accept recommendations to Congress • Alternative Dispute Resolution • GAO will provide “Negotiation Assistance” or “Outcome Prediction” if both Parties consent

  24. Choice of Forum What the GAO Does Not Review • Contract administration • Size and SIC code classifications • Small Business Certificate of Competence except if there is bad faith or failure to follow SBA regulations • 8(a) procurements made in good faith • Subcontractor protests unless requested by the agency

  25. Summary

  26. Summary Remedies • Agency corrects issues • Refrain from exercising options • Re-compete contract immediately • Issue new solicitation • Terminate the contract with justification • Award contract consistent with applicable statutes & regulations • Bid and proposal preparation costs • Other action necessary to promote compliance with law

  27. Summary Fiscal Law Considerations • Delays caused by protests do not automatically result in loss of funding • Funds available for the contract at time of protest remain available for 100 days after protest is resolved

  28. Summary Protests will always happen • Contractors will always be fighting for the money • Do as you say you are going to do • Be fair and equitable to all • Don’t try to tilt the playing field

  29. Protest Statistics

  30. TOP FOUR REASONS FOR PROTESTS - 2017 • Unreasonable technical evaluation • Unreasonable past performance evaluation • Unreasonable cost or price evaluation • Inadequate documentation in the record • Flawed selection decision

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