Jennifer Schaus & Associates SERVICES FOR US FEDERAL GOVERNMENT CONTRACTORS
WEBINAR WEDNESDAYS – 2018 WASHINGTON, DC OFFICE PHONE: 2 0 2 – 3 6 5 – 0 5 9 8
Jennifer Schaus & Associates – GOV CON WEBINAR SERIES - 2018 - WASHINGTON DC
www.JenniferSchaus.com
Join Us for Our 2018 Series of Complimentary Webinars on various US Federal Government Contracting Topics. Presenters are industry experts sharing knowledge about the competitive government contracting sector. Find all of our Govt Contracting webinars (free download) at www.JenniferSchaus.com
Contact Us @ 2 0 2 – 3 6 5 – 0 5 9 8
Jennifer Schaus & Associates – GOV CON WEBINAR SERIES - 2018 - WASHINGTON DC
www.JenniferSchaus.com
REMINDERS: All webinars are complimentary. All webinars are recorded. They are found on our website and on YouTube. Please send your questions to the speaker directly. Thank you for participating.
Jennifer Schaus & Associates – GOV CON WEBINAR SERIES - 2018 - WASHINGTON DC
www.JenniferSchaus.com
ABOUT JENNIFER SCHAUS & ASSOCIATES: - Based in downtown Washington, DC; -
A la carte services for Federal Contractors;
- Proposal Writing to GSA Schedules, 8a Cert, Contract Admin & more!; Educational webinars; -
Networking events and seminars;
WEBSITE: http://www.JenniferSchaus.com
Jennifer Schaus & Associates – GOV CON WEBINAR SERIES - 2018 - WASHINGTON DC
UPCOMING EVENTS TUESDAY - September 11 CLASS: Introduction to GSA Schedules Register: https://tinyurl.com/y973mbp6
THURSDAY - September 13 CONFERENCE: Federal Government Construction Contracting Summit Register: https://construction091318.eventbrite.com TUESDAY - September 18 CLASS: GSA Schedules For Beginners Register: https://tinyurl.com/ybrcrh2b THURSDAY - October 04 CLASS: GSA Schedule for Beginners Register: https://tinyurl.com/yazpw7da MONDAY - November 05 CLASS: So I Have a GSA Schedule, Now What? Register: https://vaptap.ecenterdirect.com/events/2414
November 13-15 CONFERENCE: GroundBreak - The Construction Conference Register: https://www.procore.com/groundbreak/schedule
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Jennifer Schaus & Associates – GOV CON WEBINAR SERIES - 2018 - WASHINGTON DC
www.JenniferSchaus.com
ABOUT OUR SPEAKER: Bryan R. King Louisiana State University (1999) The George Washington University Law School (2008) Federal procurement lawyer – 10 years Partner: Offit Kurman
Jennifer Schaus & Associates – GOV CON WEBINAR SERIES - 2018 - WASHINGTON DC
Bid Protests 101 Wednesday, August 15, 2018
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Jennifer Schaus & Associates – GOV CON WEBINAR SERIES - 2018 - WASHINGTON DC
www.JenniferSchaus.com
What Is a Bid Protest? • Generally, a bid protest is a statutorily created right to challenge the rules of a procurement, a proposal evaluation, or an award • Bid protests provide contractors an opportunity to ensure a fair and objective chance to compete for government business • You must know the rules and your rights, including when to file a protest, otherwise you may lose your ability to protest
Jennifer Schaus & Associates – GOV CON WEBINAR SERIES - 2018 - WASHINGTON DC
www.JenniferSchaus.com
Who Can File a Bid Protest? • Bid protests are filed by an interested party • An “interested party” is an actual or prospective bidder or offeror whose direct economic interest would be affected by the award of the contract or failure to award the contract
Jennifer Schaus & Associates – GOV CON WEBINAR SERIES - 2018 - WASHINGTON DC
www.JenniferSchaus.com
Where Do You File a Bid Protest? • Three primary forums for filing bid protests: • Agency-level protests (filed with the contracting officer) • Government Accountability Office (GAO) protests • U.S. Court of Federal Claims protests (COFC)
• Note: the FAA Office of Dispute Resolution (ODRA) is a special forum for protests of FAA procurements
Jennifer Schaus & Associates – GOV CON WEBINAR SERIES - 2018 - WASHINGTON DC
www.JenniferSchaus.com
What Are the Types of Bid Protests? Two Main Types of Protests: • Pre-Award – a challenge to the terms of the solicitation or the associated ground rules of the competition • Post-Award – a challenge to the agency’s evaluation and award decision • Note: some unusual types of protests do not fit neatly into either box, e.g., competitive range eliminations
Jennifer Schaus & Associates – GOV CON WEBINAR SERIES - 2018 - WASHINGTON DC
www.JenniferSchaus.com
What Are the Deadlines to File a Bid Protest?
• Agency-level protests • Pre-award: Before due date for proposals/bids • Post-award: within 10 days of when knew (or should have known) of grounds
• GAO protests • Pre-award: Before due date for proposals/bids • Post-award: within 10 days of when known or should have known; or • Within 5 days of required debriefing, whichever is later
• U.S. Court of Federal Claims protests (COFC) • No set time limit for protests, must be within “reasonable time”
Jennifer Schaus & Associates – GOV CON WEBINAR SERIES - 2018 - WASHINGTON DC
www.JenniferSchaus.com
What Happens to an Award After a Bid Protest? CICA Stay of Performance May Be Implemented: • Available for either Agency-level or GAO protests • Essentially a statutory requirement to halt protest proceedings
• Pre-award: Agency cannot make award without substantial justification • Post-award: Agency must suspend performance of a contract if: • The protest was filed within 10 days of contract award; or • The protest was filed within 5 days of required debriefing, whichever is later
• Agencies may override a CICA stay in certain situations: • •
If pre-award protest, must demonstrate “urgent and compelling” circumstances If post-award, must demonstrate “urgent and compelling circumstances, or that performance of the contract is in the “best interests of the United States”
Jennifer Schaus & Associates – GOV CON WEBINAR SERIES - 2018 - WASHINGTON DC
www.JenniferSchaus.com
What Happens if My Award Is Protested? • Awardees are permitted to intervene in the protest process • Intervening allows the awardee to ensure its interests are protected • Chance to defend the reasonableness of the Agency’s evaluation/award • Often, intervenor will work with Agency counsel
• Agency-level protests: Agency has discretion to allow intervenor (rare) • GAO and COFC protests: • Awardees are allowed to intervene as a matter of right • Intervenor counsel may be admitted under Protective Order • Intervenors are allowed to submit filings (e.g., comments on Agency Report)
• Note: it is recommended that awardees always intervene. • Cannot count on Agency to defend award, as the interests of the awardee and the Agency are not always in sync.
Jennifer Schaus & Associates – GOV CON WEBINAR SERIES - 2018 - WASHINGTON DC
www.JenniferSchaus.com
Agency-Level Protests
• Protest is filed with the contracting officer • Although there is generally an option to request independent review above the CO
• There is no real process for agency-level protests • Essentially, you file a complaint and wait for a decision
• Agencies are required to issue a “well-reasoned” decision within 35 days • When practicable
• Types of relief: • Pre-award protests: correction of solicitation deficiency • Post-award protests: Voiding of contract (rare), direct CO to reevaluate proposals and/or make new best value determination, award protester costs of protest
Jennifer Schaus & Associates – GOV CON WEBINAR SERIES - 2018 - WASHINGTON DC
www.JenniferSchaus.com
GAO Protests
• All GAO protests must be filed using electronic filing system. • $350 filing fee for protests (no extra fee for supplemental protests)
• Must be actual or prospective bidder with direct economic interest in award. • For sealed bids, means must be next in line for award • For negotiated, must have a reasonable chance of receiving award if protest is successful
• GAO gives great deference to discretion of the agency • For protests involving proprietary, confidential, or source-selection information, parties may request a protective order be issued • Hearings are possible, but extremely rare
Jennifer Schaus & Associates – GOV CON WEBINAR SERIES - 2018 - WASHINGTON DC
www.JenniferSchaus.com
GAO Protests (cont.)
• Agency is required to release an Agency Report (AR) within 30 days of protest • Includes all documents in Agency’s possession relevant to protest
• Protester (and intervenors) have 10 days to file comments on AR • Failure to file comments is a withdrawal of the protest • Failure to address any grounds discussed in AR is a withdrawal of that ground.
• Protester may file supplemental protest grounds based on AR • Same timeliness rules apply, must be filed within 10 days of knowing grounds
• GAO protests are required to be resolved within 100 days • There is an express option for a 65 day protest period
Jennifer Schaus & Associates – GOV CON WEBINAR SERIES - 2018 - WASHINGTON DC
www.JenniferSchaus.com
Resolution of GAO Protests Possible outcomes: • Protester may withdraw protest at any time • Agency may take “corrective action” at any time •
i.e., the Agency recognizes a flaw in the procurement and elects to fix the issue
• GAO issues a decision denying or dismissing protest grounds • GAO sustains all or portion of protest, issues “recommendation” to agency • •
E.g., reevaluation, revise solicitation, cancel contract and make new award, etc. Protester may be entitled to recover costs (bid/proposal costs, attorneys fees, etc.)
• Unsuccessful protester may request GAO reconsider (rarely successful), or “appeal” protest at COFC
Jennifer Schaus & Associates – GOV CON WEBINAR SERIES - 2018 - WASHINGTON DC
www.JenniferSchaus.com
COFC Protests • Only court forum to pursue a pre-award or post-award protest • Protesters may file with COFC, either: • •
After a GAO or Agency-level protest; or Instead of a GAO or Agency-level protest
• COFC is not bound by GAO decision, but will give it deference • Filing fee of $400 to file at COFC. • NOTE: There is no automatic stay in a COFC protest •
Protesters must seek an injunction to stay the award or contract performance
THANK YOU FOR ATTENDING!!
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QUESTIONS? CONTACT OUR SPEAKER BRYAN R. KING AT 703-745-1820 AND AT BKING@OFFITKURMAN.COM
SERVICES FOR US FEDERAL CONTRACTORS
OFFICE: 2 0 2 – 3 6 5 – 0 5 9 8