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 and Contract Administration, etc.; 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
The ROI on Bid Protests – Or Not Wednesday, August 15, 2018
www.JenniferSchaus.com
Jennifer Schaus & Associates – GOV CON WEBINAR SERIES - 2018 - WASHINGTON DC
www.JenniferSchaus.com
Key Questions in Deciding if it Makes Sense to Protest 1. Do you qualify to protest (i.e., standing, timeliness)? 2. Are there valid grounds to protest? 3. Is an automatic stay available? 4. How important is the contract, or agency? 5. What is your relationship with the customer? 6. What forum makes the most sense to file the protest?
Jennifer Schaus & Associates – GOV CON WEBINAR SERIES - 2018 - WASHINGTON DC
www.JenniferSchaus.com
Before We Get to the Questions, Some Protest Basics Three Primary Bid Protest Forums • Agency-level protests (filed with the contracting officer) • Generally decided within 35 days of protest
• Government Accountability Office (GAO) protests • Generally decided within 100 days of protest
• U.S. Court of Federal Claims protests (COFC)
Jennifer Schaus & Associates – GOV CON WEBINAR SERIES - 2018 - WASHINGTON DC
www.JenniferSchaus.com
Before We Get to the Questions, Some Protest Basics (cont.) 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
Question 1: Do You Qualify to Protest? Initial Hurdles to Clear: • Standing • Timeliness • Protestable issues? • Task Order Jurisdiction
Jennifer Schaus & Associates – GOV CON WEBINAR SERIES - 2018 - WASHINGTON DC
www.JenniferSchaus.com
Question 1: Do You Qualify to Protest? (cont.) • Standing: must be an “interested party” • This is an actual or prospective bidder/offeror with a direct economic interest in the award of the contract
• Timeliness: Each forum has protest filing deadlines, for pre-award and post-award protests • 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
Question 1: Do You Qualify to Protest? (cont.) • Protestable Issues: some issues cannot be challenged in a bid protest • Matters of contract administration (e.g., post-award certifications, etc.) • Responsibility of awardee • SBA issues (e.g., challenging awardee’s size or status) • Although there may be option to protest at SBA • Protests of Task/Delivery Orders: generally, neither GAO nor the COFC has jurisdiction over protests of task or delivery orders, with 2 exceptions: • •
A protest alleging that an order increased the scope, period, or max value of the underlying contract; and A protest of an order valued at $25 million or more for DoD procurements, or $10 million or more for procurements conducted by a civilian agency •
GAO has exclusive jurisdiction over protests based on the dollar threshold exception
Jennifer Schaus & Associates – GOV CON WEBINAR SERIES - 2018 - WASHINGTON DC
www.JenniferSchaus.com
Question 2: Are There Valid Grounds to Protest? Common Grounds for Pre-Award Protest: • Solicitation is ambiguous • Solicitation is overly restrictive, or overstates agency’s needs • Unnecessary brand name requirement • Requirements unfairly favor one offeror • Failure to set procurement aside for small businesses • Inclusion of inapplicable contract clauses • Note: Best practice for contractors to utilize the Q&A process in an attempt to resolve issues before resorting to a protest.
Jennifer Schaus & Associates – GOV CON WEBINAR SERIES - 2018 - WASHINGTON DC
www.JenniferSchaus.com
Question 2: Are There Valid Grounds to Protest? (cont.) Common Grounds for Post-Award Protests: • Deviation from solicitation’s stated evaluation criteria • Challenge to price/cost evaluation • Relaxation of technical requirements favoring awardee • Unreasonable technical evaluation • Unreasonable past performance evaluation • Improper cost/technical tradeoff • Improper, unequal, or misleading discussions • Unequal treatment of offerors • Note: Best practice for contractors to use debriefing process to gather as much information about the evaluation and award as possible
Jennifer Schaus & Associates – GOV CON WEBINAR SERIES - 2018 - WASHINGTON DC
www.JenniferSchaus.com
Question 2: Are There Valid Grounds to Protest? (cont.) • Debriefings: only required in FAR Part 15 (negotiated) procurements and task orders over $5.5 million • Not required in sealed bid, FSS, or commercial items procurements (unless Part 15 procedures are used)
• Offeror must request a debriefing within 3 days of either: • Learning it has been excluded from the competitive range (pre-award); or • Receiving notice that an award has been made (post award) • Note: a pre-award debriefing must be requested to preserve right to post-award debriefing
• Agency is required to identify in a debriefing: • • • • • •
Weaknesses and deficiencies in the protester’s proposal Evaluated price and technical rating of protester’s proposal Evaluated price and technical rating of awardee’s proposal Ranking of offerors, if one was conducted Rationale for award decision Reasonable responses to protester’s questions regarding the source selection decision
Jennifer Schaus & Associates – GOV CON WEBINAR SERIES - 2018 - WASHINGTON DC
www.JenniferSchaus.com
Question 3: Is an Automatic Stay Available? 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
Question 4: How Important is the Contract/Agency? • What is the expected profit from the award? • It may not make sense to incur the expense of a protest to win a contract if the expected profit is low • However, there could be other factors at play where it would make sense to fight for the award • • • •
Desire to “get in” with the agency Growth of the company Increased past performance Experience in new NAICS code
Jennifer Schaus & Associates – GOV CON WEBINAR SERIES - 2018 - WASHINGTON DC
www.JenniferSchaus.com
Question 5: What Is Your Relationship with the Customer? • Possible protest blowback • Procurement system is designed to eliminate bias, so concerns over retaliation for protesting is unfounded • Agencies are familiar with the protest process and often pad the timeline in procurement planning to account for possible protests • Protests do not need to get personal, easy to avoid allegations of fraud/bias, etc. • Nevertheless, to protest or not is a business decision, and you best know your customer relationship
Jennifer Schaus & Associates – GOV CON WEBINAR SERIES - 2018 - WASHINGTON DC
www.JenniferSchaus.com
Question 6: What Protest Forum Makes the Most Sense? • Agency-level protest: • Pros: least expensive, least formal; considered less confrontational; stay • Cons: No published decisions; rarely successful
• GAO protest: • Pros: Most common protest forum; large body of case law; extremely familiar with procurement; decisions in 100 days; stay of performance • Cons: Record limited to issues raised in protest
• COFC protest: • Pros: More robust record; hearings more common; more time to file • Cons: No automatic stay, must request an injunction; generally most expensive option
Jennifer Schaus & Associates – GOV CON WEBINAR SERIES - 2018 - WASHINGTON DC
www.JenniferSchaus.com
Protests at GAO • During Fiscal Years 2013 – 2017, an average of about 2,600 were filed each year • •
During that time, approximately 16% of protests were sustained in a decision by GAO However, approximately 45% of protests result in some form of relief for the protester •
This includes voluntary corrective action taken by the agency
• The most common reasons for a sustained protest, according to GAO: • • • • •
Unreasonable technical evaluation Unreasonable past performance evaluation Unreasonable cost or price evaluation Inadequate documentation of the record Flawed selection decision
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