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Navigating Bid ProtestsBy Pam Mazza, Managing Partner

PilieroMazza

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Call to Action

• Sole Source Authority is being considered by the U.S. Senate after passing the House

• S. 2481 would bring sole source authority to the WOSB Procurement Program

• Go to the WIPP Action Center to get involved

888 17th Street, NW, 11th Floor

Washington, DC 20006Tel: (202) 857-1000 Fax: (202) 857-0200

NAVIGATING BID PROTESTS



A PilieroMazza WebinarSeptember 24, 2014

WIPP is a national nonpartisan public policy organization, advocating on behalf of nearly 4.7 million businesses women representing 75 business organizations. WIPP provides timely economic policy information and identifies important trends and

opportunities to its membership.

www.WIPP.org

http://www.wipp.org/

Give Me 5

• National program from WIPP & American Express OPEN designed to educate women business owners on how to apply for and secure federal procurement opportunities.

• Give Me 5 works to increase the representation of Women Business Owners that win government contracts. We provide accessible business education tools to assist both new and experienced federal contractors.

• Women Business Owners could gain more than $4 billion in annual revenues if the 5% contracting goal set by Congress was reached.




A PilieroMazza WebinarSeptember 24, 2014


PRESENTED BY

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© PilieroMazza PLLC 2014

Pam MazzaManaging [email protected] (202) 857-1000

mailto:[email protected]


OVERVIEW

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Filing a Bid Protest: Who, Where, When, & What

Common Protest Grounds

Deciding Whether to Protest

Understanding the Bid Protest Process

Q&A


WHO CAN FILE A BID PROTEST?

10© PilieroMazza PLLC 2014

You must be an “interested party” to file a bid protest

Generally, an interested party is: A disappointed offeror A prospective offeror

You must have a direct economic interest affected by the award or failure to award a contract You may not be an interested party if you are not next in

line for award


WHERE TO FILE A BID PROTEST?

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Four options:1. Contracting Officer

2. U.S. Government Accountability Office (“GAO”)

3. U.S. Court of Federal Claims (“COFC”)

4. FAA’s Office of Dispute Resolution for Acquisitions (“ODRA”)

You can file via email with GAO and most contracting agencies

You need to file via facsimile for ODRA

Initial filings with COFC are hand-delivered, with electronic filing thereafter

Choice of forum depends on the type of contract and other factors


WHEN TO FILE A BID PROTEST?

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Bid protest deadlines vary depending on the protest forum, the type of procurement, and the type of protest

For example, pre-award protest grounds generally must be filed by the due date for proposals

If you receive a Notice of Award:

Immediately, and in writing, request a debriefing (even if a debriefing is not required)

Contact your attorney so you are aware of filing deadlines

If you receive a Notice of Proposed Award:

The clock may not start running for bid protests, but

The clock may start running for size and eligibility protests


WHAT DO YOU NEED TO DO TOFILE A BID PROTEST?


Filing requirements depend on the forum

For protests to a contracting officer, GAO, and ODRA, a letter will suffice

For COFC, you must file a formal complaint and likely a motion for injunctive relief, with various supporting documents

Explain what you think went wrong with the procurement and the relief you are seeking

You need more than speculation – your protest must describe specific facts and provide support for your allegations


PRE-AWARD PROTEST ISSUES

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Protest of the solicitation terms Inclusion or exclusion of clauses and provisions

Solicitation is unduly restrictive

Improper bundling

Solicitation is unclear or ambiguous

Evaluation method is unreasonable

Small business issues The “Rule of Two” and decision to set aside or not set

aside

Hierarchy of set-aside programs

Exclusion from competitive range Improper cancellation of solicitation


POST-AWARD PROTEST ISSUES

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Improper evaluation Agency failed to follow the stated evaluation criteria

Agency did not apply the evaluation criteria fairly or evenly

Agency misread the proposal

Inadequate discussions with offerors Flawed price realism and reasonableness

determinations Insufficient documentation of evaluation Improper or non-existent best value tradeoffs OCI Compliance with the performance of work requirement


DECIDING WHETHER TO PROTEST

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All protests are not created equal Any well-grounded protest has a good chance to

succeed, but some grounds of protest are particular GAO favorites: Evaluation inconsistent with solicitation

Errors in conducting discussions

Inadequate evaluation documentation

In addition, the following protests commonly result in a “sustain” decision: Offeror treated unequally

Awardee has an actual, apparent or potential OCI

Agency misread the protester’s proposal

Use of unstated evaluation criteria


OTHER CONSIDERATIONSBEFORE PROTESTING

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Are you the incumbent? Is your price lower than the awardee? Do you have more than merely complaints about

your score? Did you knock it out of the park, or do you

acknowledge you could have done better? How will the protest impact your relationship with

your customer?


GAO STATISTICS

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Fiscal year 2013: 2,429 protests filed (down 2% over 2012)

509 decisions on the merits

87 sustain decisions

17% of decisions resulted in “sustains”

Is the success rate really just 17%? No! “Sustain” statistics omit:

Corrective actions

Alternate dispute resolutions

Settlements


GAO STATISTICS (CONT’D)

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Effectiveness rate: 43% Includes both sustains and other contractor-favorable

outcomes

Rate would be even higher if not for: Untimely protests

No GAO jurisdiction

Other technically-deficient protests


UNDERSTANDING THE PROTEST PROCESS

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Likelihood of suspension of contract performance depends on the forum

Discovery You will receive the agency’s evaluation file and other

documents you ask for in your protest

Protective order will limit your access to information, so you will need to educate and have trust in your counsel to know what to look for in the discovery

Agency may seek to limit document production

Hearings Unlikely at GAO and ODRA

Typical for COFC


UNDERSTANDING THE PROTEST PROCESS(CONT’D)

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Typical bid protest timeline 100 days for GAO

3-4 months for ODRA and COFC

30 days for contracting officer

Range of outcomes Voluntary corrective action by the agency (most

common)

Denial or dismissal by the trier of fact

Sustain, with recommendation for corrective measures

Temporary and/or permanent injunction


CORRECTIVE ACTION

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Most common bid protest resolution More than 75% of the bid protests we handle are

resolved via voluntary corrective action initiated by the agency in response to a bid protest

Corrective action means the agency agrees to take some action to address the issues raised in the protest The agency may not address every protest issue, and

likely will not admit fault

You can challenge the proposed corrective action if it does not sufficiently address the protest grounds, but difficult to do

Depending on when the agency takes corrective action, you may not be entitled to attorneys’ fees


CORRECTIVE ACTION(CONT’D)

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Corrective action often results in the same award decision, but not always When agency has flexibility to make an additional

award, it often does

You can protest again after the completion of the corrective action if flaws remain

Corrective action typically takes several months to complete, and often much longer


INTERVENTION


The awardee has the right to intervene and participate in a bid protest

As the protester, you should expect the awardee to intervene and actively defend your protest

As the awardee, you have a lot at stake so intervention is critical to protect your interests Defend your contract

Assist the agency

Protect your proprietary information


ATTORNEYS’ FEES

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Protests are not always cost prohibitive, particularly when most cases are resolved on corrective action after filing only the initial protest letter

Also, if your protest is successful, you may be able to recover some or all of your protest costs, including attorneys’ fees ODRA and COFC: EAJA

GAO: Easier to obtain most or all of your protest costs

The general rule at GAO is no attorneys’ fees if the agency takes corrective action before filing its response to the protest, but if the agency takes steps that require you to make further use of the protest process, and your protest was clearly meritorious, you may get most or all of your attorneys’ fees



Thank you for joining us today.

If you would like to speak with Pam about bid protests, please contact her at:

Pam [email protected]

(202) 857-1000

QUESTIONS?




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