HUD s PBCA PROCUREMENT: PROTESTS Presented by Andrew Mohr and Daniel J. Strouse Cohen Mohr LLP Washington, D.C. January 14, 2016
What Are Bid Protests? Legal challenge brought by an offeror or potential offeror to ensure fair and legal procurement. Generally challenges to terms of solicitation or contract award. Protests can be filed pre-award, post-award, and sometimes in between
Prevalence of Protests FY 2015 FY 2014 FY 2013 FY 2012 Cases Filed 2,639 2,561 2,429 2,475 Sustain Rate 12% 13% 17% 18.6% Effectiveness Rate 45% 43% 43% 42%
Where to Protest? Directly With The Agency Government Accountability Office (GAO) Court of Federal Claims
Agency Level Protests Protest filed with the Contracting Officer, reviewed one level above CO Generally ineffective Most effective in pre-award context Least expensive
Court of Federal Claims Protests Most expensive protest process Longest process Unpredictable
GAO Protests Most Common Form of Protest Filed Less expensive than Court of Federal Claims Discovery process Uniform body of case law Chance for appeal at Court of Federal Claims
The Automatic Stay Greatest benefit to filing a protest with GAO Pre-Award Protest: Prevents award of contract until protest resolved. CAUTION: Still file a proposal Post-Award Protest: Prevents performance of contract if protest filed within applicable deadlines.
Exceptions to Automatic Stay Suspension automatically kicks in, but government may override Pre-award: Head of agency finds urgent and compelling circumstances to award and award likely within 30 days Post-award: Head of agency finds in best interest to perform or urgent and compelling circumstances will not permit waiting for GAO decision.
Pros and Cons Agency PROS Inexpensive Informal Least Intrusive CONS Difficult to Win Lose Automatic Stay GAO PROS Automatic Stay Uniform Case law Discovery Relatively Inexpensive CONS May upset customer May not lead to award Public Information is limited Court PROS CONS Decisional Body of law Length of Time Expensive
Pre-Award Protests A pre-award protest is a challenge related to the terms of a solicitation. General purpose is to ensure that the solicitation provides all offerors with a fair opportunity to compete for contract award
Pre-award protest issues Terms that unduly restrict competition Terms that are ambiguous Terms that inaccurately set forth the agency s requirements Evaluation scheme will not provide the expected result Lack of clarity
Post-Award Protests A post award protest is a challenge to the agency s award decision. Focus on agency s evaluation of proposals
Post-Award Protest Issues Agency misevaluated your proposal Agency misevaluated awardee s proposal Agency did not comply with the evaluation criteria (See Sections L & M) Agency conducted improper discussions Agency failed to conduct a proper tradeoff Agency treated offerors unequally
Removal From Competiive Range Removal from the competitive range Only when evaluations include discussions Different set of timeliness rules
Timelines For Filing GAO Protests Extremely Stringent and Often Fast Timelines Critical to ensure timely filing, or will be dismissed Timeline for automatic stay may be shorter than timeline for having protest heard
Timelines for Automatic Stay Pre-Award Notify protest prior to award decision Agency cannot award while protest is pending Post-Award 5 days after a required debriefing OR 10 days after award Whichever is later
Counting the days Start date: The day after the triggering event (date of award; date of debriefing) End date: Date agency receives notice from GAO GAO may not notify the same day you file File early!
Timelines for Filing Pre-Award: If challenging terms of solicitation, prior to due date for proposals. NOTE- still submit a proposal Any other pre-award protest, 10 days after knew or should have known Post-Award: 10 days after knew or should have known Debriefing exception 10 days after debriefing
To Protest Or Not To Protest That is the Question
Impact of Protests Delays in Procurement and Performance Additional Costs (Direct and Indirect) Change in Contract
Solicitation Is Issued Agency issues solicitation on April 1, 2016. Proposals due on July 20, 2016
What to Look For Do you understand what you are being asked to do? Is the work broader or narrower than expected? Are the evaluation criteria clear? Do the evaluation criteria or terms of the PWS restrict competition? Do the evaluation criteria broaden the competition? Do the terms of the solicitation appear to favor some offerors over others? How will price be evaluated?
Concerns? Ask questions Discuss concerns with contracting officer Consult with an attorney, if desired
Pre-Award Protest Business Considerations Can this be resolved without a protest? Can this be resolved with an agency level protest? (Will this impact stay?) How will customer react? How much will this cost?
Filing A Pre-Award Protest File with contracting officer and at protests@gao.gov File prior to due date and time for submission of proposals if solicitation impropriety File within 10 days of when knew or should have known any other protest ground (by 5:30 Eastern). Will know filed if receive confirmation email from GAO
After Proposal Submission Does the agency conduct discussions? Are you excluded from the Competitive Range? Request a Debriefing Must take first date offered Debriefing Request should be for preaward debriefing Request must come within 3 days of notice of exclusion If agency provides option for post-award debriefing, decline.
Competitive Range Debriefing Debriefing may be done orally or in writing Must include Evaluation of significant elements of proposal Summary of rationale for eliminating proposal Reasonable responses to relevant questions Will not include Number of offerors Identity of offerors Content of proposals Ranking of offerors Evaluation of other offerors
Filing A Competitive Range Protest File with contracting officer and at protests@gao.gov File within 10 days of debriefing (if debriefing requested on time). Must file by 5:30 to be timely If award had not been made, stay would prevent award from being made. Will know filed if receive confirmation email from GAO
Agency Notifies You Of Unsuccessful Offer
What do you do? Request a debriefing within 3 days (ASAP) Prepare for debriefing Prepare questions for debriefing (written or oral) Request redacted Source Selection Decision Obtain as much intel (legally) as possible Information obtained in debriefing Weaknesses, significant weaknesses, deficiencies Overall evaluated cost or price, technical rating of awardee and you Ranking of offerors Summary of rationale for award Reasonable responses to questions
Why do you need information? Protest grounds must be specific and factually based. Initial protest is an attempt to get your foot in the door. More information to follow.
What to look for? Improper evaluations disregard portions of your proposal Unequal evaluations awardee received scores you didn t; you received weaknesses awardee didn t. Fair assessment of your proposal? Accurate price? Following of evaluation criteria?
Do I protest? Business Decision Cost Likelihood of protest success? Likelihood of contract award? Relationship with the government? Incumbency? Sufficient facts?
You ve filed Now What Process is the same for each type of protest Agency has 30 days to file a response to protest, and must include all relevant documents. NOTEdocuments may be protected Protester (and intervenor) have 10 days to file comments on report, along with any supplemental protests Agency receives opportunity to respond to supplemental protests. Protester can comment after that. GAO decision within 100 days of initial protest filing
You could win too! Other offerors may decide to protest your award GAO permits intervention Not your fight but you can assist the government
POINTS OF CONTACT Andrew Mohr, Esq. Daniel J. Strouse, Esq. COHEN MOHR, LLP 1055 Thomas Jefferson St., N.W., Suite 504 Washington, DC 20007 amohr@cohenmohr.com dstrouse@cohenmohr.com (202) 342 2550 office