9/27/2017 DEBRIEFINGS, BID PROTESTS, AND SIZE & STATUS PROTESTS AND INVESTIGATIONS MEET THE PRESENTER TYPES OF PROTESTS

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1 DEBRIEFINGS, BID PROTESTS, AND SIZE & STATUS PROTESTS AND INVESTIGATIONS PRESENTED BY: MARIA L. PANICHELLI, ESQ. IN COOPERATION WITH NATIVE PTAC AND GOVOLOGY MEET THE PRESENTER Maria L. Panichelli Partner Federal Contracting Attorney Cohen Seglias Pallas Greenhall & Furman PC 2 TYPES OF PROTESTS Several Varieties of Protest that Small Businesses Must Be Aware Of: Bid Protest Size Protest (as compared to Size Determination) Status Protest (as compared to Status/ Eligibility Investigation) * There are also NAICS code appeals* 3 1

2 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. 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). 4 WHAT LAW GOVERNS THE BIDDING AND AWARD PROCESS? The Federal Acquisition Regulation ( FAR ) was established for the codification and publication of uniform policies and procedures for acquisition by all executive agencies Supplemental Agency Regulations, such as Defense Federal Acquisition Regulation Supplement (DFARS) Army Federal Acquisition Regulation Supplement (AFARS) Engineer Federal Acquisition Regulation Supplement (EFARS) SBA / VA Small Business Program Regulations 5 HOW DOES THE BIDDING AND AWARD PROCESS WORK? Key Considerations: What Agency? What type of Contract? (Set-aside? IDIQ Task Order?) What type of Procurement 6 2

3 WHAT TYPE OF PROCUREMENT? FAR Part 14 Sealed Bidding Invitation for Bids ( IFB ): Award is Made to the Lowest Responsive & Responsible Bidder FAR Part 15 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 ) Competitive Range 7 WHAT TYPE OF PROCUREMENT? Other FAR Sections (8, 12, 13) Often use procedures from FAR Part 15 But be careful not a guarantee that all procedures of FAR Part 15 apply 8 TYPICAL 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 9 3

4 PROTESTS IN CONTEXT: THE CHRONOLOGY Solicita on Pre-Award Protests based on Errors in Solicitation Source Selection Did Source Selection involve Competitive Range? Pre-award notices of exclusion from compe ve range Pre-Award Debriefings & Protests based on exclusion from Competitive Range Was the Procurement at Issue a Small Business Set Aside? Notice of Proposed Award Small Business Size or Status Protests No ce of Award Post-Award Debriefings Protests ( Protest Litigation process) 10 Bid Protests as an Affirmative Tool 11 BASICS Bid Protest: Another contractor s challenge Of the procedures or process used (by the agency) during the bidding, source selection, evaluation and contract award process Relates to a particular contract 12 4

5 WHY PROTEST? PRE-AWARD SOLICITATION ISSUES Common Pre-Award Solicitation Protest Issues: Patent Error/Unclear or Ambiguous ( Bid it as you see it ) Improper Exclusion of Required Provisions/Inclusion of Inapplicable Provisions Unduly Restrictive (CICA violation) Unreasonable Evaluation Method(s) What about Non-Solicitation Based Pre-Award Issues? 13 PRE-AWARD PROTEST PROCEDURE Pre-Award Notice (FAR (a)(1)): Pre-award notices of exclusion from competitive range The contracting officer shall notify offerors promptly in writing when their proposals are excluded from the competitive range or otherwise eliminated from the competition. The notice shall state the basis for the determination and that a proposal revision will not be considered. Debriefing must be requested, in writing, within 3 days of receipt 14 PRE-AWARD PROTEST PROCEDURE Pre-Award Notice for Small Biz Set Asides (FAR (a)(2)): Pre-Award notices of proposed award to other offeror In Small Business, HUBZone, VOSB/SDVOSB or WOSB/EDWOSB procurement, Contracting Officer must notify each offeror in writing PRIOR to award Notice must state: Name and Address of the Apparently Successful Offeror That the Government Will Not Consider Subsequent Revisions of the Offeror s Proposal That No Response is Required Unless a Basis Exists to Challenge the Size Status or Small Business Status of the Apparently Successful Offeror 15 5

6 POST-AWARD PROTEST PROCEDURE Post-Award Notice (FAR (b)(1)): Post-award notices of award to other offeror Within 3 days after the date of award, the contracting officer shall notify unsuccessful offerors of such award and the notice must state The number of offerors solicited; The number of proposals received; The name and address of each offeror receiving an award; The items, quantities, and any stated unit prices of each award; and In general terms, the reason(s) the offeror s proposal was not accepted. Debriefing must be requested, in writing, within 3 days of receipt 16 DEBRIEFINGS When is a Debriefing Required? (FAR 14 v. FAR 15; FAR 12, 13?) When Do you Need to Request a Debriefing? What is the Purpose of a Debriefing? How are Debriefings Conducted? (In Person? Telephonic? Letter? What Impact on Deadlines?) Who Should Attend A Debriefing? What is Covered, and What is NOT Covered in a Debriefing? Plan Questions in Advance. Counsel Can Help You Prepare! 17 WHY PROTEST? POST-AWARD ISSUES Common Post-Award Protest Issues: Evaluation Issues Agency error in applying evaluation criteria Agency misinterpretation of proposal Conclusions with no rational basis in the record Disparate Treatment Flaws in Trade-Off Process Price issues? (Realism? Reasonableness?) Inadequate, Misleading or Uneven discussions with Offerors Insufficient Documentation 18 6

7 WHY PROTEST? SHOULD YOU PROTEST? Key Considerations: Cost Likelihood of Success Discretion v. Clear Error Not all protests are created equal Practical Concerns: How might this affect relationship with the client/agency? 19 WHY PROTEST? SHOULD YOU PROTEST? 20 WHO CAN PROTEST? Interested Party / Standing Under the Tucker Act, an interested party is an actual or prospective bidder or offeror whose direct economic interest would be affected by award of contract or by failure to award contract Were you next in line? Was the evaluation so flawed as to allow someone other than the next in line to protest? Were you eligible to compete? Seems like an easy issue, but can get very complicated 21 7

8 WHERE CAN YOU FILE YOUR PROTEST? Three Main Options for Straight Bid Protests: Contracting Officer (Agency) U.S. Government Accountability Office ( GAO ) U.S. Court of Federal Claims ( COFC ) 22 WHERE SHOULD YOU FILE YOUR PROTEST? Some Considerations: Cost of Litigation v. Size of Contract at Issue Complexity of Issues Objectivity (Agency Counsel v. DOJ) Stay/Injunctive Relief Jurisdictional Concerns Coordination with Similarly Situated Protestors (GAO/COFC) (Attorney Preference Educate yourself) 23 WHAT DO YOU NEED TO INCLUDE IN YOUR PROTEST? Filing requirements regarding format depend on protest forum: Agency, GAO: usually a letter is sufficient COFC - Formal (verified) complaint. And, if seeking a stay, injunctive relief packet (PI, TRO, MOL, Affidavits, Etc.) Specificity is key! Specific allegations regarding what, exactly, you allege was a procurement error You need more than speculation (admittedly tough balance when all you have is the debriefing ) 24 8

9 WHEN DO YOU NEED TO FILE YOUR PROTEST? Perhaps the Most Important Question in All of Government Contracting! Deadlines Vary Depending on Protest Forum and Type of Protest Remember the Protest Process Know or Should Have Known Standard Do you want a Stay? 25 WHEN DO YOU NEED TO FILE YOUR PROTEST? 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 an attorney as soon as you receive the applicable notice! 26 Defending Against Bid Protests 27 9

10 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 28 DEFENDING AGAINST BID PROTESTS 29 DEFENDING AGAINST BID PROTESTS Common Procedural Ways to Fight a Protest Jurisdiction Standing Challenges to Injunctive Relief 30 10

11 Size & Status Protests 31 BASICS Size Protest: Another contractor s challenge concerning the size of a small business in relation to a specific contract. Size Investigation/Determination: SBA s investigation relating to a concern s size. Can be initiated by the SBA or based on outside information; Not specific to one contract. 32 Status Protest: BASICS Another contractor s challenge concerning the status of a small business in relation to a specific contract. Eligibility Investigation/Determination: SBA s or VA s Investigation relating to a concern s status. Can be initiated by the SBA or based on outside information; Not specific to one contract

12 WHY PROTEST? Small Business Size Protest Issues: Size (Including Affiliation) Small Business Status Protest Issues: Unmet Eligibility Criteria Unconditional Ownership Unconditional Control 34 Interested Party WHO CAN PROTEST? Is sometimes broader definition than in bid protests Size - 13 CFR (standing is broken down by type of set-aside contract at issue) 35 Interested Party Status WHO CAN PROTEST? WOSB/EDWOSB - 13 CFR & 13 CFR HUBZone - 13 CFR & 13 CFR (a) - 13 CFR SBA SDVOSB - 13 CFR & 13 CFR VA VOSB/SDVOSB - 48 CFR

13 WHERE SHOULD YOU FILE YOUR PROTEST? File with the Contracting Officer, who will forward to the appropriate adjudicating bodies: U.S. Small Business Administration ( SBA ) Size SBA Small Business Program Eligibility Factors Department of Veterans Affairs ( VA ) VA VOSB/SBVOSB Eligibility Criteria (Size will be referred to SBA) 37 WHAT DO YOU NEED TO INCLUDE IN YOUR PROTEST? What are the requirements for filing? In writing Specify all grounds upon which protests are based Include specific facts bare allegations are insufficient Include EVERY possible basis for protest, in as much detail as possible! 38 WHEN DO YOU NEED TO FILE YOUR PROTEST? What time limits apply? Sealed Bids 5 Days after Bid Opening for the Contract/Task Order Negotiated Procurement 5 Days after Notice re: Identify of Prospective Awardee 39 13

14 QUESTIONS? 40 CONTACT INFORMATION Maria L. Panichelli Partner Cohen Seglias Pallas Greenhall & Furman PC