For Audio please call : 323-920-0091 Passcode: 401 -2482 · • Capability statement development...

1 © 2015 The Government Contracting Institute | www.GovernmentContractingInstitute.com | 866-579-1346 1 © 2015 The Government Contracting Institute | www.GovernmentContractingInstitute.com | 866-579-1346

Welcome to the Webinar “A Primer on Debriefings and Protests”

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2 © 2015 The Government Contracting Institute | www.GovernmentContractingInstitute.com | 866-579-1346

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“A Primer on Debriefings and Protests” Presented by:

Edward DeLisle and Maria Panichelli

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The Government Contracting Institute is a leader in government contracting training. We teach what government contractors need to know.

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EDWARD T. DELISLE & MARIA L. PANICHELLI OF COHEN SEGLIAS PALLAS GREENHALL &FURMAN, P.C.

For TargetGov and the Government Contracting Institute

Presented By:



Maria Panichelli is an associate in the Federal Contracting group at Cohen Seglias Pallas Greenhall & Furman PC. Her practice spans a variety of federal contracting and small business procurement matters. She has represented clients before numerous Federal agencies, the Government Accountability Office, and various Federal and state courts, and she has extensive experience with bid protests, REAs, CDA contract claims, terminations, and appeals. Having acquired substantial experience with the government's 8(a), VOSB/SDVOSB, WOSB/EDWOSB and HUBZone small business programs, Maria also counsels clients regarding all aspects of small business procurement.

Your Presenters



Edward DeLisle is Co-Chair of the Federal Contracting Practice Group at Cohen Seglias Pallas Greenhall & Furman PC. He concentrates his practice in the areas of federal contracting, construction law, construction litigation and small business procurement and litigation. He has drafted and negotiated construction contracts, teaming agreements and joint venture agreements for subcontractors, contractors, developers and owners. Ed also actively monitors the progress of his client’s construction projects in order to safeguard those rights and remedies to which they are entitled. He has litigated, arbitrated and mediated complex construction and procurement cases in various jurisdictions and forms throughout the area.

Your Presenters



Protests in Context The Procurement Process: A Brief Overview



Agenda

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

2. Using Bid Protests as an Affirmative Tool – Debriefings 3. Using Bid Protests as an Affirmative Tool – Protest

Requirements and Procedures 4. The Other Side of the Coin – Defending Against Bid

Protests 5. Small Business Eligibility Protests: Size & Status

Protests/Size & Eligibility Examinations



Procurement Process: a Brief Overview 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 – Engineer Federal

• Supplemental Agency Regs: Examples:

– Defense Federal Acquisition Regulation Supplement (DFARS) – Army Federal Acquisition Regulation Supplement (AFARS)

Acquisition Regulation Supplement (EFARS)

http://farsite.hill.af.mil/ http://www.acquisition.gov/far/index.html

http://farsite.hill.af.mil/

http://www.acquisition.gov/far/index.html

http://www.acquisition.gov/far/index.html



Procurement Process: a Brief Overview 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?)



Sealed Bidding

Invitation for Bids (“IFB”)

Award is Made to the Lowest Responsive and

Responsible Bidder



Contracting By Negotiation

Request for Proposals (“RFP”)

Award is Made to the Offeror who Presents the “Best Value”

Tradeoff Process

Lowest Price Technically Acceptable (“LPTA”)



Evaluation Factors

The award decision is based on evaluation factors and significant subfactors that are tailored to the acquisition.

Evaluation factors and significant subfactors must : (1) Represent the key areas of importance and emphasis to be considered in the source selection decision; and (2) Support meaningful comparison and discrimination between and among competing proposals.



Source Selection Decision

• The source selection authority’s (“SSA”) decision shall be based on a comparative assessment of proposals against all source selection criteria in the solicitation

• While the SSA may use reports and analyses prepared by others, the source selection decision shall represent the SSA’s independent judgment

• The source selection decision shall be documented, and the documentation shall include the rationale for any business judgments and tradeoffs made or relied on by the SSA, including benefits associated with additional costs

• Although the rationale for the selection decision must be documented, that documentation need not quantify the tradeoffs that led to the decision



Post Award Notices

Within 3 days after award, each unsuccessful offeror shall be notified of:

• The number of proposals received; • Name and address of each awardee; • The award price, including unit prices and quantities; • In general terms, the reasons why the offeror’s proposal was

not accepted.



Using Protests as an Affirmative Tool

Debriefings



Debriefings

FAR 15.506 Timely written request within 3 days after the date on which that offeror has received notification of contract award is key – you don’t ask for it, you don’t get it.



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



Debriefings

What is the Purpose of a Debriefing:

• What did the agency think were the strengths and weaknesses in my proposal?

• What was the Price and Technical Rating of my offer and the

awardee’s offer? • How did I rank? • What was the Agency thinking? Care to share your

rationale? • Was the evaluation scheme and applicable regulations

followed?



Debriefings

How are Debriefings Done? Who Should Attend?

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

• The contracting officer should normally chair any debriefing

session held • Individuals who conducted the evaluations shall provide

support

Counsel can - and in some cases, should – be present. A balancing test, on a case-by-case basis.



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… • 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; and • Reasonable responses to relevant questions about whether source selection

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



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; or

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



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?



Debriefings

“Best Practices” Tip:

Always request a debriefing, even if you won. Benefits include: • Valuable insight into the procurement process • Relationship building with the agency • Valuable insight about the strengths and weaknesses of your

competitors Among others



Using Protests as an Affirmative Tool

Bid Protests: The Who, What, When, Where, and Why of Filing a Protest

Not necessarily in that order…



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”)



Bid Protests: Where Can You File a Bid Protest? Additional 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



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) • Filing Methods (email, fax, hand-delivery) – can come into play with strict

timeliness requirements • Jurisdictional Concerns (increasingly important?) • Coordination with similarly situated protestors (GAO/COFC) • (Attorney Preference – Educate yourself)



Bid Protests: Who Can File a Bid Protest?

• An “Interested Party” – Disappointed Offeror – Prospective Offeror – SBA/VA – Definition can sometimes be a little broader – 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?



Bid Protests: Why Protest? Common Protest Issues

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?)




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 most common areas for disagreement**

• Inadequate, Misleading or “Uneven” discussions with

Offerors • Insufficient Documentation

• Flaws in “Trade-Off” Process




Small Business Protest Issues • Size

• Affiliation

• “Unconditional Ownership” • “Unconditional Control”

• Other Eligibility Criteria

• Other?



Bid Protests: Why Protest? SHOULD I Protest?

Key Considerations • Cost

• Leverage

• Corrective Action • The Power of the Stay

• Likelihood of Success

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



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?




Will the Agency Stay the Award? 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?




• Solicitation / Pre-Award Stage: Know or should have known – Patent v. Latent error(s)?

• Notice of Proposed Award – Will it start the clock running for bid protests? – May start clock running for SBA/VA size or

eligibility/status protests

• Award



The Takeaway Lesson? 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: 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.)



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…)



Bid Protests: How to File Your Protest?

Again, depends on forum: • Email

• Letter

• Hand Delivery



Bid Protests: The Protest Process

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

Package)

• Intervention

• Motions to Dismiss – Jurisdictional Issues and Challenges to Propriety of Injunctive Relief

• Discovery – Agency/Administrative Record

• Comments to Agency/Administrative Record and (Cross) MJOAR • Decision • EAJA?



Bid Protests: The Protest Process

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:

• Dismissal (Jurisdiction/Standing) • Corrective Action or Settlement (Doesn’t always solve everything) • Sustain the Protest (Does not necessarily mean you get award!) • Injunctive Relief (Denial of injunctive relief is not necessarily an overall loss)

• Attorneys Fees? (in limited cases)



The Other Side of the Coin

Defending Against Bid Protests



Bid Protests: Defending Against Bid Protests

• Unfortunately, not much you can do to prevent 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



Bid Protests: Defending Against Bid Protests

Common Non-Substantive Defense Strategies

• Intervention • Procedural Challenges (Increasingly Important)

• Injunctive Relief



Small Business Eligibility Protests

Size & Status Protests/ Size & Eligibility Investigations: A

Quick Introduction



Size and Status Protests

• Offensive Tool, and Defensive Issue • Contractor v. Contractor – Competitor challenging eligibility, usually

because of size (including affiliation), ownership or control • “Interested Party” may protest

• Interested party seeking to protest both the size and the status (i.e.

ownership and control) must 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 Eligibility Investigations

• Agency v. Contractor – Re-evaluation of eligibility initiated by the

applicable agency.

• Sometimes spurred by protest, but not officially initiated by protest

• Different Procedures and Requirements



IN-DEPTH, IN-PERSON/VIRTUAL CLASS

Want to learn more? Please join us:

Debriefings, Bid Protests, and Size/Status Eligibility Challenges: an In-Depth Look at the Most Important Processes in

Government Contracting

November 2, 2015, 9am-12pm ET at TargetGov offices

OR (virtually) from your own office https://www.targetgov.com/product/debriefings-and-bid-protests/

https://www.targetgov.com/product/debriefings-and-bid-protests/










Questions?


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

Contact Information

Edward T. DeLisle, Esq. [email protected]

@ed_edelisle (twitter)


http://www.fedconblog.com/

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


https://twitter.com/ed_edelisle

53 © 2015 The Government Contracting Institute | www.GovernmentContractingInstitute.com | 866-579-1346 © 2015 The Government Contracting Institute | www.GovernmentContractingInstitute.com | 866-579-1346

Upcoming Classes

10/08/15 Write a Powerful Capability Statement (Gloria Larkin)

10/22/15 Proposal Development – Beyond the Ordinary (Dr. Robert S. Frey)

11/02/15 Debriefings, Bid Protests, & Size/Status Eligibility Challenges (Edward DeLisle, Maria Panichelli)

11/05/15 Billion Dollar Graphics (Mike Parkinson)

11/12/15 Building Trust Through Your Oral Presentation (Dr. Robert S. Frey)

53

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