ACQ 370 Protest Protest A protest is not

ACQ 370 Protest

Protest A protest is not a claim 2

Protest Defined A written objection to a solicitation or award of a contract • Also includes objections to the cancellation of a solicitation or termination of a contract due to improprieties in making award 3

PROTEST PROCESS 4

Protest Process Who can file a protest? What are the requirements that the Court lays out in Labatt Food Service? 5

Protest Process Standing to protest • Only an “interested party” may protest a federal procurement • Actual or prospective offeror • Whose direct economic interest would be affected by the contract award • “Substantial chance” of receiving an award 6

Protest Process A protester must prove • The agency violated a statute or regulation and/or the agency’s action was unreasonable • But for agency violation, there was a substantial chance that offeror would have been awarded contract • Not “harmless error” 7

Protest Process Where can a protest be filed? • Procuring Agency • GAO • U. S. Court of Federal Claims 8

Protest Process Start in any of the three GAO opinion is given deference * *If writ of certiorari is granted 9

PROTEST BEFORE AWARD 10

Protest Before Award Reasons to Protest • Solicitation defects • Unduly restrictive of competition • Improper sole source procurement • Ambiguous or conflicting terms, or in violation of statute or regulation • Inadequate time to prepare bids/proposals • Improper bundling • Improper cancellation of solicitation • The Agency is attempting an out of scope change to an existing contract • Exclusion from Competitive Range 11

Protest Before Award When to file • Protest solicitation: before bid opening or time designated for receipt of initial proposal • Unless defect in solicitation not apparent • Protest exclusion from competitive range: within 10 days after basis of protest is known or should have been known • Applies to all forums (Agency, GAO, and Court) 12

Protest Before Award Impact on Award • Agency must not award the contract, pending resolution of the protest • Unless justified in writing as urgent and compelling or in the best interest of the government 13

PROTEST AFTER AWARD 14

Protest After Award Reasons to Protest • Best value determination was improper, unreasonable, or not in accordance with the evaluation criteria • Agency conducted improper cost/technical tradeoffs • Used evaluation criteria that were not stated in the RFP • Failure to conduct meaningful discussions • The source selection authority failed to adequately document his/her source selection decision • Bias or bad faith in making award • Out of scope changes or specifications relief 15

Protest After Award Debriefings for Disappointed Offerors • Offerors must request debriefing in writing within 3 days of notice of award • Debriefing should occur within 5 days of the request 16

Protest After Award When to file a Protest • Agency & GAO • No later than 10 days “. . . after the basis of protest is known or should have been known, whichever is earlier. ” • FAR 33. 103 (e)- Agency • 4 C. F. R. § 21. 2 - GAO • GAO • For competitive proposals: the initial protest shall not be filed before the debriefing date offered to the protester, but shall be filed not later than 10 days after the date on which the debriefing is held • COFC • No time limit, but time diminishes value of any 17

Protest After Award Suspending Performance • Government must suspend performance • If protest filed within 10 days of award or within 5 days following debriefing date, whichever is later. • Performance may continue if justified in writing as urgent and compelling or best interests of government • After deadline for suspension, but within deadline for protest • Protest is heard and decided, but no suspension of performance 18

CHOICE OF FORUM 19

Choice of Forum Start in any of the three GAO opinion is given deference * *If writ of certiorari is granted 20

Choice of Forum The Contractor selects the forum • What factors influence the decision? 21

Choice of Forum 22

Choice of Forum GAO Process • Decisions rendered within 100 days or 65 days for express option • GAO decisions are recommendations; GAO lacks authority to order procuring agency • Agencies not choosing to implement GAO recommendation fully must notify GAO within 60 days • GAO reports all instances of agency refusal to accept recommendations to Congress • Alternative Dispute Resolution • GAO will provide “Negotiation Assistance” or “Outcome Prediction” if both Parties consent 23

Choice of Forum What the GAO Does Not Review • Contract administration • Size and SIC code classifications • Small Business Certificate of Competence except if there is bad faith or failure to follow SBA regulations • 8(a) procurements made in good faith • Subcontractor protests unless requested by the agency 24

SUMMARY 25

Summary Remedies • • • Agency corrects issues Refrain from exercising options Re-compete contract immediately Issue new solicitation Terminate the contract with justification • Award contract consistent with applicable statutes & regulations • Bid and proposal preparation costs • Other action necessary to promote compliance with law 26

Summary Fiscal Law Considerations • Delays caused by protests do not automatically result in loss of funding • Funds available for the contract at time of protest remain available for 100 days after protest is resolved

Summary Protests will always happen Contractors will always be fighting for the money • Do as you say you are going to do • Be fair and equitable to all • Don’t try to tilt the playing field •