Bid Protests 2012: Tips and Trends

1. Bid Protests 2012: Tips and Trends by Jonathan A. DeMella for NCMA West Sound Chapter November 8, 2012

2. Snapshot Comparison NCMA West Sound Chapter November 8, 2012

3. Recent Trends at the GAO NCMA West Sound Chapter November 8, 2012

4. Recent Trends at the GAO NCMA West Sound Chapter November 8, 2012

5. What can be protested? Illegalities or improprieties in: • Solicitations by federal agencies for goods or services • Cancellations of solicitations by federal agencies • Awards or proposed awards by federal agencies • Terminations or cancellations of contract awards by federal agencies, if the protest alleges that the termination or cancellation was based on improprieties in contracts award NCMA West Sound Chapter November 8, 2012

6. What cannot be protested? • Challenges to size standards, NAICS codes classifications (SBA) • PIA violations not reported within 14 days of discovery • Awards, proposed awards of subcontracts • Suspensions, debarments NCMA West Sound Chapter November 8, 2012

7. Bid Protests • Forums • Agency Protest • GAO Protest • Court of Federal Claims Protest • FAA / ODRA NCMA West Sound Chapter November 8, 2012

8. Agency Level Protests • Process Defined by individual agency supplemental regulations • FAR 33.103 Basic Requirements • Written protest directed to the appropriate Government representative • Evidence that the protester is an “interested party” (offeror whose direct economic interest is affected by the award) • Detailed statement of the factual and legal basis of the protest • Stated of the requested relief • Evidence that the protest is timely (proof that filed not later than 10 days after the grounds for the protest known or should have been known – 5 days after debrief) NCMA West Sound Chapter November 8, 2012

9. Agency Level Protests • If protest is timely, Agency must suspend contract’s performance until protest is resolved, unless finding of urgent need is made • Agency must exercise “best efforts” to resolve protests within 35 days • Can appeal adverse protest decision to GAO or US Court of Federal Claims NCMA West Sound Chapter November 8, 2012

10. Agency Level Protests • Pros • Fairly informal process • Relatively inexpensive • Usually a quick resolution • Cons • Often decided by the same individual whose actions form the basis of the protest • May adversely affect the business relationship with the customer • Process varies among the agencies NCMA West Sound Chapter November 8, 2012

11. GAO Protests • Rules set forth in 4 CFR Part 21 (outside the FAR System) • Process is more structured, but similar requirements • Protest must be in writing • Protest must contain detailed statement of factual and legal basis of the protest • Protest must demonstrate that offeror is an interested party • Protest must demand a ruling by the Comptroller General • Protest must state the requested relief NCMA West Sound Chapter November 8, 2012

12. GAO Protests • May request a protective order • Access to competitor’s offer or bid • Limited to counsel admitted under the Order • Contract performance may be suspended if protest is filed within 10 days of award or 5 days of debriefing • Remember to give GAO 1 full day to notify Agency to be on the safe side NCMA West Sound Chapter November 8, 2012

13. GAO Protests • Within 30 days of notification of protest by GAO, Agency must file Agency Report responding to the protest • Must be delivered to GAO, protester, and any intervenors • Must contain a complete statement of facts, memorandum of law explaining Agency’s position under applicable procurment law, and copies of documents relevant to the protest • Protestors and intervenors must file response to the Agency Report within 10 days • Failure to file on time will result in dismissal of protest NCMA West Sound Chapter November 8, 2012

14. GAO Protests • Pros • Relatively informal process • Detailed but accessible rules and regulations • Meaningful participation by counsel in the process • Cons • Lengthier decision process • Limited opportunity for meaningful discovery NCMA West Sound Chapter November 8, 2012

15. Court of Federal Claims Protests • Civil Lawsuits brought against the Government decided under the standards of the APA • Under APA, Agency decision presumed to be “rational.” • Decision will not be overturned unless found to be “arbitrary and capricious, an abuse of discretion, or otherwise not in accordance with law.” • Must show Prejudice • Rules applicable to COFC bid protests are contained in Appendix C to the Court’s Local Rules NCMA West Sound Chapter November 8, 2012

16. Court of Federal Claims Protests • Unlike typical civil litigation, bid protests before the COFC require: • 24 hour notice to the DoJ, the Court’s Clerk, the Agency and apparent winning offeror of the protestor’s intent to file an action • Court will schedule an initial status conference as soon as possible after filing of the complaint to discuss: • Identity of interested persons • Whether the apparent winning offeror should be added as intervenor in protest • Requested injunctive relief • Content and timing of filing of administrative record NCMA West Sound Chapter November 8, 2012

17. Court of Federal Claims Protests • Bid protest cases are subject to the 6 year statute of limitations established by the Tucker Act • Unreasonable delay in filing will prejudice protestor’s right to relief NCMA West Sound Chapter November 8, 2012

18. Court of Federal Claims Protests • Pros • Ability to conduct discovery • Benefit of established rules and procedures • More formal, rigorous process • Cons • More formal, rigorous process • Expensive • No deadline within which protest must be resolved • Agency decision given deference; high standard of review • No automatic stay without TRO NCMA West Sound Chapter November 8, 2012

19. Mandatory Stay Issues • Critical “preliminary” relief afforded to disappointed bidders • At Agency and GAO, triggered by timely filed protest (which is why considered “mandatory” or “automatic”) • At COFC, must seek immediate injunctive relief (e.g., TRO, PI) NCMA West Sound Chapter November 8, 2012

20. Mandatory Stay Issues • Pre-award protest • File before bids/offers are due • Agency may not award contract until resolved, except in exceptional circumstances • Post award protest • File within 10 days of contract award or five days after the debriefing date, whichever is later • Contract performance is suspended until resolved, except in exceptional circumstances NCMA West Sound Chapter November 8, 2012

21. Sustained Cases • Most sustained protests reflect procedural errors. • GAO does not question agency’s informed exercise of judgment • Three areas where errors most often found: • Evaluation inconsistent with stated solicitation criteria (failure to follow the ground rules) • Inadequate documentation of evaluation • Discussions are inadequate or misleading NCMA West Sound Chapter November 8, 2012

22. When to Protest a“Ground Rules” Violation • SSA fails to follow the stated evaluation criteria • Ground rules don’t mirror mission needs • Agency changes ground rules, without allowing offerors a chance to respond to changes • Rating scheme is complex and unclear • Offerors can’t understand requirements • Offerors can’t prepare offers intelligently, on equal basisBUT, if this is obvious at the outset, protest right away NCMA West Sound Chapter November 8, 2012

23. When to Protest for Lack of Adequate Documentation • Agency must document and retain evaluation materials • There must be a supporting rationale in record to conclude Agency had reasonable basis for source selection decision • This will likely become apparent after protest is filed, but may be evident during debriefing • Be inquisitive during the debriefing(this will help your attorney!) NCMA West Sound Chapter November 8, 2012

24. When to Protest for Lack of Meaningful Discussions • Discussions must sufficiently identify areas of concern • Tailored to each offeror’s proposal • Object is to maximize Agency’s ability to obtain best value • Discussions must not be vague or misleading • Discussions may not favor one offeror over another • Clarifications (limited exchanges) are not discussions NCMA West Sound Chapter November 8, 2012

25. SBA Size Protests • Nothing to do with a company’s ability to perform the work • Entirely focused on whether a company meets the size requirements for a particular contract NCMA West Sound Chapter November 8, 2012

26. Bringing a Protest • Short time frame • 5 days from bid opening or notice of the intended awardee • Low evidentiary bar • Protestor only needs to show that there is some basis for the belief that the protested concern is other than small for the procurement • SBA will review a wide variety of materials • Newspaper articles, information from websites, promotional information NCMA West Sound Chapter November 8, 2012

27. Defending a Protest • Three days to respond • SBA will require various types of business information • Annual reporting information, ownership records, familial information, information related to business relationships, income statements and tax returns for the previous 3 years • Failure to provide this information may result in an adverse finding • If the protest is successful, the protested concern will lose its small business status and can’t bid on set-aside contracts until it is recertified by the SBA. NCMA West Sound Chapter November 8, 2012

28. Danger Zones • Ostensible subcontractor • When a subcontractor performs vital and primary requirements of a contract or • The prime contractor is unusually reliant on the subcontractor • Familial relationships • There must be a clear line of fracture between the companies. • Totality of the circumstances NCMA West Sound Chapter November 8, 2012

29. Best Practices • Keep up with the regulations • Be aware of your company’s internet presence • Be mindful of your business and subcontracting relationships – particularly those involving family members NCMA West Sound Chapter November 8, 2012

30. Hot Issues • Recent Federal Circuit Decisions • Systems Application and Technologies, Inc., __ F.3d __, 2012 WL 3631249 (Fed. Cir. August 24, 2012) • Scott Timber Co. v. United States, __ F.3d __, 2012 WL 3834661 (Fed. Cir. Sept. 5, 2012) • In-Sourcing Decisions NCMA West Sound Chapter November 8, 2012