Bid Protest Webinar Series: Decisions & Trending Protest ... · 17 Violation of RFP’s Redaction...
Transcript of Bid Protest Webinar Series: Decisions & Trending Protest ... · 17 Violation of RFP’s Redaction...
Bid Protest Webinar Series:Decisions & Trending Protest Topics
Jay Carey
J. Hunter Bennett
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FAR Part 8.4 Procurements
“Nevermind”: Cancellation of solicitations
“Can We Talk?”: Recent GAO decisions on
discussions
Wild & Weird: Other notable decisions
Overview
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What are they?
Schedule buys — streamlined; commercial
Different flavors
RFQs (not RFPs)
Limitation on open market items
FAR 8.4 Procurements
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Streamlined — the 3 Ds:
Lesser documentation requirements
Limited discussions obligations
No debriefing requirement
FAR 8.4 Procurements
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FAR Part 12 & Customary Commercial Practice
FAR 12.301(a) — limits deviations
FAR 10.002(b) — requires market research
FAR 12.302(c) — requires waiver
JRS Staffing Servs., B-410098 et al, Oct. 22, 2014
FAR 8.4 Procurements
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Applicability to FAR 8.4 buys
HealthDataInsights, Inc., B-409409, Apr. 23, 2014
CGI Federal Inc. v. US, 118 Fed. Cl. 337 (2014)
FAR 12.203 directs use with FAR Parts 13, 14, and 15
FAR 8.4 incorporates portions of FAR Part 12, but not
12.301 or 12.302
An anomalous & problematic result
FAR 8.4 Procurements
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The Federal Circuit Cuts to the Chase
FAR Part 12 implements FASA provisions broadly
applicable to acquisitions of commercial items
FAR 12.102(a): Part 12 “shall be used for the
acquisition of . . . commercial items”
FAR 12.302(c): Applies to any “solicitation or
contract for commercial items”
FAR 12.102(c): Part 12 takes precedence over
other parts in the event of a conflict
FAR 8.4 Procurements
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FAR Part 14
Cancellation after opening very limited
“compelling reason”
FAR Part 15
“broad authority”
needs only a “reasonable basis”
applies even if cancellation is post-evaluation
Cancellation
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What’s reasonable?
Increased competition. Computers Universal, Inc., B-410790.2,
Feb. 25, 2015
Solicitation doesn’t reflect needs. TaxSlayer LLC, B-411101, May 8,
2015
Existing contract more advantageous. AeroSage LLC, B-
410648.2, March 20, 2015
Fair and equal competition problem. Progressive Services Corp.,
B-404183, Jan. 11, 2011
Perform work in-house. SupplyCore Inc., B-409418.4 et al., April
16, 2015
Cancellation
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Pretext
Avoid awarding contract on competitive basis
Avoid getting decision on protest
GAO will “closely examine” basis for cancellation
But reasonableness standard still applies
Close Examination
Hearing reasonably likely: TaxSlayer; AeroSage
Cancellation
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Be careful what you wish for:
“New or additional rationale justifying the
cancellation of a solicitation provided by an agency
during the development of a protest is acceptable so
long as it would have supported cancellation had it
been advanced originally” TaxSlayer
Better luck at COFC?
Mori Associates, Inc. v. US, 102 Fed. Cl. 503 (2011)
But see, Madison Servs., Inc. v. US, 92 Fed. Cl. 120
(2010)
Cancellation
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Highly technical issues
Focus Diagnostics, B-409614.3, Nov. 24, 2014
Price
Joint Logistics Managers, B-410465.2, May 5, 2015
Staffing
ExecuTech, B-410893, Mar. 9, 2015
Per Aarsleff A/S, B-410782, Feb. 18, 2015
CFS-KBR, B-410486, Jan. 2, 2015
Discussions
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Clarifications
Hughes Network Sys., B-409666.5, Jan. 15, 2015
American Material, B-410899, Mar. 12, 2015
Acceptability
Presidio, B-408128.33, Oct. 31, 2014
OCIs
IBM, B-410639, Jan. 15, 2015
Discussions
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Corrective Action
Leidos, B-409214.4, Jan. 6, 2015
Lockheed Martin, B-299145.5, Aug. 30, 2007
Alliant Enterprise JV, B-410652.4, Feb. 25, 2015
Prejudice
Bart & Assoc., B-407996.5, Jan. 5, 2015
Discussions
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Prohibition on Proposal Consultants: Advanced
Communications Cabling, Inc., B-410898.2, March 25,
2015
Not unduly restrictive
Related to legitimate interest in focusing on firms’ ability to
perform
Security Act--Timeliness and Requirements: Caddell
Construction Co., Inc., B-411005.1 et al., Apr. 20, 2015
10 days from when knew or should have known basis to
challenge qualification
stands by “total business volume” interpretation despite
conflicting COFC precedent
Other Notable Decisions
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Proposal Submission Deadline: Richen
Management, LLC, B-410903, March 10, 2015
28 days from RFP issuance sufficient
maintenance contract; requirement known for 11 months;
urgency
Deadline to Respond to Solicitation Amendment:
Financial Asset Management Systems, Inc., B-
409722.9, Apr. 24, 2015
Protester failed to demonstrate need for more than three
days to modify proposal in response to 359 Q&As
Other Notable Decisions
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Violation of RFP’s Redaction Requirements: SBSI, Inc., B-
410923, March 20, 2015
Failure to redact identifying information material failure to comply
with requirements
Reasonably deemed unacceptable
Costs: System Studies & Simulation, Inc. – Costs, B-409375.5,
May 8, 2015
Where claim includes allowable and unallowable costs and GAO
can’t distinguish, entire claim is unallowable
Refusal to Furnish Agency Report: DNC Parks & Resorts at
Yosemite, Inc., B-410998, Apr. 14, 2015
Decide case based on protester’s documents
GAO still dismisses protest sua sponte
Other Notable Decisions
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Jay Carey
Covington & Burling LLP
202-662-5186
Hunter Bennett
Covington & Burling LLP
202-662-5424
Questions?