BID PROTESTS Current Issues and Cases

Transcription

1 BID PROTESTS Current Issues and Cases

2 About the Firm 2 McMahon, Welch and Learned, PLLC represents many small and mid-sized federal services contractors in Northern Virginia, DC and Maryland, including smalldisadvantaged firms, veteran-owned firms, womenowned firms and Hub Zone qualified firms. We also have a strong corporate and acquisitions-support practice which focuses on general business legal matters of significant interest to the broader business community.

3 Presenters 3 J. Patric k Mc Maho n, Partner Mr. McMahon has nearly thirty years of experience with a primary focus on representation of companies that offer information technology products and services to the federal government. Mr. McMahon advises corporations and other business entities in connection with all aspects of their federal procurement business including contract award and terminations, claims, contract disputes, bid protests, and prime contractor/subcontractor relationships.

4 Presenters 4 W illiam T. W elch, Partner Mr. Welch has twenty years of experience providing legal counsel for the entire lifecycle of a government contractor from contract negotiation, award, and protests to contract administration and contract claims. Mr. Welch also has experience in teaming agreements, subcontractor agreements, and related issues. In addition, Mr. Welch advises contractors who qualify for small business set-aside awards, 8(a) competitive and non-competitive contracts, and HUBZone and Service-Disabled, Veteran Owned contracts.

5 Can a Bid Protest Work? 5 Yes. We have seen protesters successfully protest their loss of a contract and emerge from the protest process with the contract. It rarely happens in a single step, but it does happen. Protests should be seen as a series of steps toward a goal of eventually obtaining the contract. We hope this presentation will explain what those steps are and what a contractor can expect from a protest.

6 Should You Protest? 6 What can you expect from a Bid Protest? Can you ever get the contract award? It does happen, but not frequently GAO statistics show that protesters get some sort of relief about 45% of the time Successful GAO written decisions typically result in a recommendation that proposals be re-evaluated or that the Agency amend the solicitation to conform to the Government s needs and solicit new final proposal revisions Pre-Award and Post-Award Protests

7 Size or Status Protests 7 May only be filed with the SBA Very small window for protesting (5 business days of the notice of intent to award a small business contract) No right to a debriefing on the size or status issue Average annual revenue over the last three years greater than the size standard Affiliation with another company or undue reliance on another company SBA s decision on a size or status protest may be appealed to the SBA Office of Hearings and Appeals

8 Debriefing (FAR ) 8 If you are involved in a negotiated procurement (governed by FAR Part 15), you are entitled to a post award debriefing on your proposal. You must ask for the debriefing within 3 days of receipt of the notice of award The Government is required to tell you the strengths and weaknesses of your proposal, the overall cost and technical rating of your proposal and the successful proposal, a summary of the rationale for award, and responses to reasonable questions that you submit Will not include any point by point comparisons of the proposals and will not reveal any information that is exempt from release by the Freedom of Information Act. No debriefing is required following a GSA Schedule acquisition pursuant to FAR 8.4

9 Where to file a Bid Protest 9 Can be filed: at the Agency level (directly with the contracting officer); at the GAO; or at the Court of Federal Claims Advantages and disadvantages of different forums

10 Typical Post-Award Protest Grounds 10 Failure to evaluate proposals in accordance with the stated evaluation criteria Use of new evaluation criteria that were not disclosed in the solicitation Inadequate or flawed technical evaluation Inadequate or incomplete discussions Failure of the awardee to meet all the mandatory requirements of the solicitation The awardee does not meet the eligibility requirements of the solicitation

11 Agency-Level Protests 11 Must be filed in writing with the contracting officer within 10 days of when you know or should have known of the basis of your protest The FAR recommends that an Agency-level protest be decided within 30 days of the receipt of the protest Agency-level protests are rarely successful So why are they done? The denial of an agency protest may be appealed to GAO Does not have all the remedies/protections of a GAO protest

12 GAO Protests 12 GAO is a Congressional Agency with oversight responsibilities of federal procurement GAO will not re-evaluate proposals or substitute its decision for the Agency s original decision GAO will review your protest to determine if the evaluation was reasonable and/or whether the Agency followed procurement regulations and the terms of the solicitation Must be filed within 10 days of when you know or should have known of the basis of your protest You may not file a protest until you receive your debriefing if requested and mandatory

13 GAO Protests 13 Agency Report Agency has 30 days to prepare an agency report in response to the protest Agency report must contain a contracting officer s statement of the facts relevant to the protest, a legal memorandum in response to the issues raised by the protest, and all the contemporaneous evaluation documents relevant to the protest issues Protester will not be allowed to see much of the relevant information The protester s outside legal counsel may review this information under the terms of a protective order issued by GAO Protester s legal counsel provides a response to the Agency report

14 GAO Protests 14 By statute, GAO must decide your protest within 100 days If there are factual issues in dispute, GAO may request a hearing Occurs in about 10% of all bid protests filed GAO decisions are not, per se, appealable A protester may file the same bid protest with the Court of Federal Claims, even after a loss at GAO

15 GAO Protests 15 Automatic Stay A GAO protest may also trigger an automatic suspension of new contract performance Valuable tool in preserving the status quo of the parties while GAO considers the protest Will be invoked if the protest is filed and the Agency notified by GAO within 10 days of contract award or within 5 days of a mandatory debriefing, whichever is later The stay will continue until GAO renders its decision, unless the Agency demonstrates that a stay of performance will not be in the interests of the Government Override of the stay rarely occurs in practice

16 Court of Federal Claims Protests 16 May be filed whether or not the protest has been filed earlier at the Agency or at GAO Few time restrictions, so parties who miss their filing deadlines at the GAO may still protest at the Court of Federal Claims Defended by the Department of Justice lawyers, in contrast to a GAO protest, which is defended by the Agency s counsel May provide a more objective legal counsel for negotiating a resolution of the protest. Removes control of the protest from the Agency and usually escalates the division between the protester and its customer

17 Questions? 17 MCMAHON, WELCH AND LEARNED, PLLC 2100 Reston Parkway Suite 325 Reston, VA Main: