Debriefings, Bid Protests and Size/Eligibility Challenges · The Protest Process Solicitation...

Debriefings, Bid Protests and

Size/Eligibility Challenges

Presented By:

MARIA L. PANICHELLIOF COHEN SEGLIAS PALLAS GREENHALL &FURMAN, P.C.

FOR GOVOLOGY

Today’s Agenda

1. Protests in Context - an Overview of the Federal Contracting Procurement Process

2. The Types of Protests

3. Using Bid Protests as an Affirmative Tool

4. Defending Against Bid Protests

5. Size/Status Protests and Size/Status Eligibility Examinations

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Protests in Context

The Procurement

Process:

A Brief Overview

3

What Law Governs the Bidding

and Award Process?

Meet the FAR:

The Federal Acquisition Regulation (“FAR”) is established for the codification and publication of uniform policies and procedures for acquisition by all executive agencies 48 CFR – Chapter 1

Supplemental Agency Regs Examples:• Defense Federal Acquisition Regulation Supplement

(DFARS)• Army Federal Acquisition Regulation Supplement

(AFARS)• Engineer Federal Acquisition Regulation Supplement

(EFARS) http://farsite.hill.af.milhttp://www.acquisition.gov/far/index.html

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How Does the Bidding and

Award Process Work?

Key Considerations:

What Agency (different procedures)?

What type of Contract (Set Aside? IDIQ)?

What type of Procurement (different manner of evaluating bids/offers: Sealed Bidding? Contracting by Negotiation?)

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Sealed Bidding v. Contracting

By Negotiation

FAR Part 15 – Sealed Bidding Invitation for Bids (“IFB”): Award is Made to the Lowest Responsive and Responsible Bidder

FAR Part 16 – Contracting by Negotiation Request for Proposals (“RFP”): Award is made to the offeror who presents the “Best Value”

• Tradeoff Process• LPTA

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Evaluation Factors

Typical Evaluation Factors:

Management Organization Proposed Technical Approach/Solutions Proposed Schedule Technical Experience and Expertise Key Personnel Qualifications Past Performance Experience with similar types of work Small Business Subcontracting Plan Price

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The Protest Process Solicitation (Pre-Award Protests)

Source Selection

(Small Business Set Asides – Notice of Proposed Award)

(Small Business Size or Status Protests)

Notice to Unsuccessful Offerors and Award

Debriefings

Initial Filings (Letter/Complaint and, if Applicable, Injunctive Relief Package)

Intervention

Motions to Dismiss (Jurisdictional and Standing Issues) and Challenges to Propriety of Injunctive Relief

Discovery – Agency/Administrative Record

Comments to Agency/Administrative Record and (Cross) MJOAR

Decision

EAJA?

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Types of Protests

And

Size/Status Challenges

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Types of Protests

Several Varieties of “Protest” that Small Businesses Must Be Aware Of:

Bid Protest

Size Protest ( Size Determination)

Status Protest ( Status/Eligibility Investigation)

* There are also NAICS code appeals*

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Types of Protests

Bid Protest:

Another contractor’s challenge of the procedures or process used during the bidding, source selection, evaluation and contract award process. Relates to a particular contract.

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Types of Protests

Size Protest:

Another contractor’s challenge concerning the size of a small business in relation to a specific contract ( can sometimes lead to Size Determination).

Status Protest:

Another contractor’s challenge concerning the status of a small business in relation to a specific contract (can lead Status/Eligibility Investigation).

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Other Types of Challenges

Size Determination:

SBA’s investigation relating to a concern’s size. Not specific to one contract. Can be initiated internally by the SBA or based on outside information.

Eligibility Examination:

SBA’s or VA’s Investigation relating to a concern’s status. Not specific to one contract. Can be initiated internally by the Agency or based on outside information.

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Using Bid Protests

as an Affirmative Tool

The Protest Process Solicitation (Pre-Award Protests)

Source Selection




Debriefings


Intervention

Motions to Dismiss (Jurisdictional and Standing Issues) and Challenges to Propriety of Injunctive Relief

Discovery – Agency/Administrative Record

Comments to Agency/Administrative Record and (Cross) MJOAR

Decision

EAJA?

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Pre-Award Protests: Why Protest?

Common Protest Issues

Pre-Award Protest Issues:

Patent Error/Unclear or Ambiguous Improper Exclusion of Required Provisions/Inclusion

of Inapplicable Provisions Unduly Restrictive of Competition Improper Bundling Unreasonable Evaluation Method(s) Small Business Issues

• Hierarchy of Set-Aside Programs• Rule of Two (Increasing Discretion re: GSA & FSS?)

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Post-Award Protests:

Debriefings

When to Request a Debriefing?FAR 15.505 (Pre-Award):

Timely written request within 3 days after receipt of the notice of exclusion from the competition

At the offeror’s request, this debriefing may be delayed until after award

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Debriefings

When to Request a Debriefing?FAR 15.506 (Post-Award):

Timely written request within 3 days after the date on which that offeror has received notification of contract award

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Debriefings

Untimely requests do not entitle you to a debriefing

No exceptions, but there is some discretion; you might get one anyway, if the agency feels like it

BUT

Government accommodation of an untimely request does not extend the deadlines for filing protests!!

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Debriefings

How are Debriefings Done?

Debriefings may be done orally, in writing, or by any other method acceptable to the contracting officer

Letter v. Telephonic v. In Person• Agency preference, case-by-case basis• Advantages and Disadvantages• Opportunity to Ask Questions/Impact on

Deadlines Should Counsel Attend?

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Debriefings

What is Covered in a Debriefing? (FAR 15.506)

The Government’s evaluation of the significant weaknesses or deficiencies in the offeror’s proposal, if applicable

The overall evaluated cost or price (including unit prices) and technical rating, if applicable, of the successful offeror and the debriefed offeror, and past performance information on the debriefed offeror

The overall ranking of all offerors, when any rankings was developed by the agency during the source selection (RFP v. IFB)

A summary of the rationale for award For acquisitions of commercial items, the make and model of the item to be

delivered by the successful offeror Reasonable responses to relevant questions about whether source selection

procedures contained in the solicitation, applicable regulations, and other applicable authorities were followed

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Debriefings

Limitations on Debriefing/What is NOT Covered:

Debriefing will not include a point-by point comparison of the debriefed offeror’s proposal with those of other offerors

Moreover, the debriefing shall not reveal any information prohibited from disclosure by 24.202 or exempt from release under the Freedom of Information Act (5 U.S.C. 552) including:• Trade Secrets• Privileged or confidential manufacturing processes and

techniques• Commercial and financial information that is privileged or

confidential, including cost breakdowns, profit, indirect cost rates, and similar information

• The names of individuals providing reference information about an offeror’s past performance

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Post-Award Protests: Debriefings

Common Protest Issues

What am I Listening For? Post-Award Protest Issues:

Evaluation Issues:• Improper Application of Provisions or Failure to Apply

Required Provisions (be wary of timeliness defenses!)• Agency error in applying evaluation criteria• Agency misinterpretation of proposal*Past Performance and Technical Experience and Expertise and Personnel Qualifications are most the common areas for disagreement*

Inadequate, Misleading or “Uneven” discussions with Offerors

Insufficient Documentation Flaws in “Trade-Off” Process

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Debriefings

Where do we go from here:

Ground for Protest?

Request a clarification post-debriefing?

Assessment of evaluation – what did we learn for the future?

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The Who, What, When,

Where, and Why of Filing

a Protest:Not necessarily in that order…

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Bid Protests:

Why Protest?

Common Post-Award Protest Issues:

Evaluation Issues• Improper Application of

Provisions or Failure to Apply Required Provisions (be wary of timeliness defenses!)

• Agency error in applying evaluation criteria

• Agency misinterpretation of proposal

Inadequate, Misleading or “Uneven” discussions with Offerors

Insufficient Documentation Flaws in “Trade-Off” Process

Common Pre-Award Protest Issues:

Patent Error/Unclear or Ambiguous (Bid it as you see it!)

Improper Exclusion of Required Provisions/Inclusion of Inapplicable Provisions

Unduly Restrictive Improper Bundling Unreasonable Evaluation

Method(s) Small Business Issues

• Hierarchy of Set-Aside Programs• Rule of Two (Increasing Discretion

re: GSA & FSS?)

Bid Protests:

Why Protest?

What About IFBs? How Do you Protest Price?

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Bid Protests:

Why Protest? SHOULD I Protest?

Key Considerations: Cost Likelihood of Success

• Discretion v. Clear Error• Not all protests are created equal

Leverage• Corrective Action• The Power of the Stay

Practical Concerns: How might this affect relationship with the client/agency?

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Bid Protests:

Who Can File a Bid Protest?

An “Interested Party”• Disappointed Offeror• Prospective Offeror• Seems like an easy issue, but can get very

complicated

With “direct economic interest” • Were you next in line?• Was the evaluation so flawed as to allow

someone other than the next in line to protest?

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Bid Protests:

Where Can You File a Bid Protest?

Three Main Options for Straight Bid Protests:

Contracting Officer (Agency)

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

U.S. Court of Federal Claims (“COFC”)

Less Common: FAA’s Office of Dispute Resolution for

Acquistions (“ODRA”)

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Bid Protests:Where SHOULD You File YOUR Bid Protest?

Some Considerations:

Size of Contract/Dispute Amount Cost of Litigation Complexity of Issues Objectivity (Agency Counsel v. DOJ) Stay/Injunctive Relief Jurisdictional Concerns (increasingly important?) Coordination with similarly situated protestors (GAO/COFC) Filing Methods (email, fax, hand-delivery) – can come into

play with strict timeliness requirements (Attorney Preference – Educate yourself)

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Bid Protests:What to File when Initiating a Bid Protest?

Filing requirements regarding format depend on protest forum:

Agency, GAO, SBA and VA: usually a letter is sufficient

COFC• Formal (verified) complaint• And, if seeking a stay, injunctive relief packet

(PI, TRO, MOL, Affidavits, Etc.)

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Bid Protests:

What to Include in Your Bid Protest?

Specificity is key!

Specific allegations regarding what, exactly, you allege was a procurement error

You need more than speculation (tough balance when all you have is the debriefing…)

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Bid Protests:


Injunctive Relief?

Whether or not to seek injunctive relief can be a critical consideration in most contractors’ minds is whether the protest will suspend, or “stay,” the awardee’s contract performance pending the protest

How long will the protest take?

What are the consequences of award/NTP?

Use as leverage?

If you can’t or don’t want to file in time for a stay, can you meet the injunctive relief requirements of COFC?

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Bid Protests:


Injunctive Relief:

Likelihood of success on the merits (mini argument/preview)

Irreparable Harm (purely monetary is usually not enough)

Public Interest

Balance of Harms/Weighing of the Hardships

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Bid Protests:

WHEN to File a Bid Protest?

Perhaps the Most Important Question in All of Government Contracting!

Deadlines Vary Depending on Protest Forum (GAO, COFC, SBA, VA) and Type of Protest (Pre-or Post- Award)

Do you want a Stay?

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Bid Protests:


“Know or should have known” the basis of your protest:

Solicitation / Pre-Award Protests• Patent v. Latent error(s)?

Award / Post-Award Protests

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Bid Protests:


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Remember the Protest Process:

Solicitation (Pre-Award Protests)

Source Selection




Debriefings

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Bid Protests:


Bid Protest Timelines are complicated and nuanced and firm and strict

You will NOT be granted ANY leeway if you are late!

Best practice advice?

Call your attorney as soon as you receive the Notice of Proposed Award/ Award!

Bid Protests:

How to File Your Protest?

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Again, depends on forum:

Email

Letter

Hand Delivery

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Defending Against

Bid Protests

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Defending Against Bid Protests

Unfortunately, not much you can do to avoid these, as they usually have to do with the applicable agency’s actions rather than the winning contractor’s actions or qualifications

That said, it helps to be aware of the commonly protested issues so that you can be aware of potential issues with agency conduct

Also, while substantive defenses depend entirely on the nature of agency conduct, there are procedural defenses that you can be sure to explore

Defending Against Bid Protests

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Remember the Protest Process:


Intervention Motions to Dismiss (Jurisdictional and Standing Issues)

and Challenges to Propriety of Injunctive Relief Discovery – Agency/Administrative Record Comments to Agency/Administrative Record and (Cross)

MJOA Decision EAJA?

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Bid Protest Timelines

Typical Timelines:• 30 days at Agency Level• 100 days for GAO• Several Months at COFC, Subject to Injunctive Relief

Issues or Special Circumstances

Typical Outcomes:• Corrective Action or Settlement (Doesn’t always solve

everything)• Sustain the Protest(Does not necessarily mean

protestor gets award!)• Dismissal (Jurisdiction/Standing) • Injunctive Relief (denial of injunctive relief is not

necessarily an overall loss)• Attorneys Fees? (in limited cases)

Size & Status Protests/

Size & Eligibility

Investigations

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Size and Status Protests: A

Primer

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Offensive Tool, and Defensive Issue

Contractor v. Contractor – Competitor challenging eligibility, usually because of size (including affiliation), ownership or control Corrective Action or Settlement (Doesn’t always solve everything)

“Interested Party” may protest (Broader definition)

Interested party seeking to protest both the size and the status (i.e. ownership and control) may have to file two separate protests

Size Protests must be brought pursuant to 13 CFR part 121

Protests challenging the eligibility issues brought under program-specific regulations

Size and Status Protests:

Why Protest?

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Small Business Protest Issues: Size

• Affiliation

Unmet Eligibility Criteria

“Unconditional Ownership”

“Unconditional Control”

Other?

Size and Status Protest

Processes

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Size and Status Protests:Where Do I File My Size/Status Protest?

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Options for Eligibility (Size, Status) Protests:

U.S. Small Business Administration (“SBA”)• Size, Sometimes Eligibility Factors

Department of Veterans’ Affairs (“VA”)• VA SBVOSB “Ownership” and “Control”• Size will be referred to SBA

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How Do I File My Status Protest?

File with the Contracting Officer, who will forward to the appropriate bodies

Remember: You might need to file 2 separate protests (Size, and Status) even though you are sending both to the same CO

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What Do I File With My Protest?What are the requirements for filing?

In writing

Specify all grounds upon which protests are based

Specific facts, or allegations – “Bare Allegations” are insufficient

Include EVERY possible basis for protest!

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When Do I File My Protest?What Time Limits Apply?

Sealed Bids – 5 Days after Bid Opening for the Contract/Task Order

Negotiated Procurement – 5 Days after Notice to Unsuccessful Offeror re: Identify of Prospective Awardee

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What Happens After Filing SBA notifies protested party of the protest and allows

chance to respond. (*355 form*) This is your Due Process Chance to Respond! Utilize it accordingly!!!

SBA will determine the status of the protested concern within fifteen days after receipt of the protest (sometimes extensions are granted to the agency)

The SBA then notifies the CO, the protestor, and the protested concern in writing of its determination

The protested concern, the protestor, or the CO may file an appeal of the protest to OHA (SBA’s Office of Hearing and Appeals)

Size Investigations

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Size Investigations and

Determinations

May be initiated by SBA itself (though often spurred by protests or letters from competitors)

The size determination will be based primarily on the information supplied by the protestor or the entity requesting the size determination and that provided by the concern whose size status is at issue. The determination, however, may also be based on grounds not raised in the protest or request for size determination. SBA may use other information and may make requests for additional information to the protestor, the concern whose size status is at issue and any alleged affiliates, or other parties. (Is this language enforceable after Miles and AmBuild?)

Burden of persuasion: The concern whose size is under consideration has the burden of establishing its small business size

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Determinations

Time frame for making size determination:

After receipt of a protest or a request for a formal size determination, the SBA Area Office will issue a formal size determination within 15 business days, if possible

The contracting officer may award a contract after receipt of a protest if the contracting officer determines in writing that an award must be made to protect the public interest

If SBA does not issue its determination within 15 business days (or request an extension that is granted), the contracting officer may award the contract if he or she determines in writing that there is an immediate need to award the contract and that waiting until SBA makes its determination will be disadvantageous to the Government

The SBA will base its formal size determination upon the record, including reasonable inferences from the record, and will state in writing the basis for its findings and conclusions

SBA will promptly notify the contracting officer, the protester, and the protested concern. SBA will send the notification by verifiable means, which may include facsimile, electronic mail, or overnight delivery service

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Determinations

What are the requirements for representing small business size status, and what are the penalties for misrepresentation?

Presumption of Loss Rule: In every contract, subcontract, cooperative agreement, cooperative research and development agreement, or grant which is set aside, reserved, or otherwise classified as intended for award to small business concerns, there shall be a presumption of loss to the United States based on the total amount expended on the contract, subcontract, cooperative agreement, cooperative research and development agreement, or grant whenever it is established that a business concern other than a small business concern willfully sought and received the award by misrepresentation (But…)

Penalties for Misrepresentation: Suspension or debarment; Civil Penalties; Criminal Penalties

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Determinations

Appeals from formal size determinations may be made to OHA. Unless an appeal is made to OHA, the size determination is the final decision of the agency – 13 CFR § 121.1101

A concern may request SBA to recertify it as small at any time by filing an application for recertification with the Government Contracting Area Office responsible for the area in which the headquarters of the applicant is located, regardless of the location of parent companies or affiliates. No particular form is prescribed for the application; however, the request for recertification must be accompanied by a current completed SBA Form 355 and any other information sufficient to show a significant change in its ownership, management, or other factors bearing on its status as a small concern - 13 CFR§ 121.1010

Eligibility Examinations

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What is an Eligibility Examination?

Purpose: To verify the accuracy of any certification made or information provided as part of the certification process

Eligibility examinations may verify that a concern meets eligibility requirements at the time of the examination

SBA/VA may perform eligibility examinations at any time

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What Happens As Part of An Eligibility Examination?

SBA/VA will notify the concern in writing that it will conduct an examination to verify the status of the concern

• Note: there is a right to conduct a site visit without prior notification to the concern.

Government will request that the concern provide documentation and information related to the concern's eligibility.

Government will Issue a Decision Reconsideration? Consequences…

Recent Developments…

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Questions?

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Maria L. Panichelli, [email protected]@MariaPanichelli (twitter)www.linkedin.com/in/mariapanichelli/

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Contact Information

mailto:[email protected]

http://www.linkedin.com/in/mariapanichelli/

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