Protest Download Bid Protests Size Protests and Status

Protest Download: Bid Protests, Size Protests, and Status Protests June 12, 2018

Presenters Megan Connor, Partner Piliero. Mazza PLLC Government Contracts Group mconnor@pilieromazza. com (202) 857 -1000 Jon Williams, Partner Piliero. Mazza PLLC Government Contracts Group jwilliams@pilieromazza. com (202) 857 -1000 § Counsels clients on a variety of government contracting and business matters § Pursues and defends bid, size and status protests before GAO, COFC and SBA § Counsels on affiliation issues, limitations on subcontracting, and how to maintain size and status § Advises on corporate formation, governance, restructuring and small business planning § Advises contractors on a wide range of government contracting matters § Defends and files size and status protests and appeals, bid protests, and related administrative and court proceedings § Regularly helps to establish mentor-protégé, joint venture, teaming, and subcontract relationships § Represents small and large contractors in internal investigations, suspension and debarment proceedings, and SBA subcontracting plan compliance reviews © Piliero. Mazza PLLC 2018

About Piliero. Mazza PLLC is a full-service law firm with offices in Washington, DC and Boulder, CO. We are most well known as a government contracting firm and for 25 years we have helped our clients navigate the complexities of doing business with the federal government. We also provide a full range of legal services including advice on corporate, labor and employment, SBA procurement programs, and litigation matters. Our clients value the diverse array of legal guidance they receive from us and our responsiveness as we guide their growth and secure their success. Our primary practice areas are: § Government Contracting § Business & Corporate § Small Business Programs & Advisory Services § Litigation § Labor & Employment § Intellectual Property & Technology Rights Sign up for our newsletters and blog at www. pilieromazza. com © Piliero. Mazza PLLC 2018

Overview § § Bid protests & debriefings Size and status protests Unique considerations for protests of task orders Recent developments © Piliero. Mazza PLLC 2018

Deciding to File a Bid Protest § Are you an “interested party”? • • • § § A disappointed offeror (post-award) A prospective offeror (pre-award) You may not be an interested party if you are not next-in-line for award Do you have a factual basis for the protest? What is your competitive standing? Impact on relationship with the customer Are you the incumbent? 5 © Piliero. Mazza PLLC 2018

Where to File a Bid Protest § § Contracting Officer (“CO”) U. S. Government Accountability Office (“GAO”) U. S. Court of Federal Claims (“COFC”) FAA’s Office of Dispute Resolution for Acquisitions (“ODRA”) 6 © Piliero. Mazza PLLC 2018

Bid Protest to the CO § Advantages: • • Relatively low cost May result in prompt “corrective action” May be able to negotiate Should be resolved in 35 days § Disadvantages: • • Not reviewed by an outside, neutral party Protester is unlikely to receive any discovery 7 © Piliero. Mazza PLLC 2018

Bid Protest to GAO § Advantages: • • • Relatively quick resolution (100 days or less) May obtain automatic stay of award or performance Only forum for IDIQ task order protests that meet the dollar limit required for jurisdiction § Disadvantages: • • • Less scrutiny on agencies? Narrow jurisdiction Statistics decidedly favor the agency 8 © Piliero. Mazza PLLC 2018

9 © Piliero. Mazza PLLC 2018

Bid Protests to COFC § Advantages: • • Not subject to GAO timeliness rules – yet Right to appeal Rigor of review More comprehensive agency report § Disadvantages: • No automatic stay of the contract; you have to convince the judge • Typically more expensive than GAO or agency 10 © Piliero. Mazza PLLC 2018

When to File a Bid Protest § Pre-award protest = due date for proposals § Post-award protests • CO and GAO: 10 days of when you knew or should have known the basis for the protest • ODRA: no later than seven business days after the date the protester knew or should have known the basis for the protest or five days after a debriefing if a debriefing has been requested • COFC: no specific deadline (yet), but the longer you wait, the more difficult it may be to prevail 11 © Piliero. Mazza PLLC 2018

Triggering the “CICA Stay” § The Competition in Contracting Act (“CICA”) requires the agency to suspend the contract pending the outcome of the protest • • Applies to protests filed with the CO or GAO Protest must be filed within 10 days of award or within five days of a required post-award debriefing, whichever is later § No CICA stay for protests filed at ODRA or COFC • • • You have to convince the judge to stop the contract Very unlikely at ODRA Possible at COFC if you can convince the judge to enter an injunction 12 © Piliero. Mazza PLLC 2018

When Is a Debriefing Required? § Pre-award notifications • • Exclusion from the competitive range Procurements that are set aside § Post-award notifications • • FAR part 15 procurement FAR part 16 procurement (multiple-award contracts) FAR part 8 procurement (GSA Schedule) FAR part 12 procurement (commercial items) 13 © Piliero. Mazza PLLC 2018

Mechanics of Requesting a Debriefing § Pre-award • You must request one within three days after notice of exclusion from the competition • • The debriefing will happen “as soon as practicable” The debriefing can occur post-award § Post-award • • You must request one within three days after notice of contract award The debriefing should occur within five days of the request, but only to the “maximum extent practicable” 14 © Piliero. Mazza PLLC 2018

Pre-Award Bid Protest Arguments § Improprieties in the solicitation, such as: • • • Terms that are unduly restrictive of competition Unclear solicitation provisions Inclusion or exclusion of required clauses and provisions Insufficient information Unreasonable evaluation method § Exclusion from competitive range § Improper cancellation of solicitation § Organizational conflict of interest (“OCI”) 15 © Piliero. Mazza PLLC 2018

Post-Award Bid Protest Arguments § Challenges to the technical evaluation • • Failure to follow stated criteria Application of unstated criteria Unequal evaluation Agency misread proposal § Inadequate, misleading, or unequal discussions § Challenges to the price evaluation • • Unreasonable price realism or price reasonableness analysis Performing a price analysis not called for in the RFP or failing to perform a price analysis called for in the RFP 16 © Piliero. Mazza PLLC 2018

Post-Award Protest Arguments § Insufficient documentation § Past performance evaluation • § § § Failure to consider close-at-hand information OCI Improper or non-existent best value tradeoff Improper sole source award Out-of-scope modification Solicitation ambiguities • Patent vs. latent 17 © Piliero. Mazza PLLC 2018

GAO’s Most Prevalent Reasons for Sustaining Protests in 2017 § Unreasonable technical evaluation – E. g. , CR/ZWS LLC, B-414766. 2 (Sept. 13, 2017) (finding that the agency failed to find awardee’s proposal unacceptable where its technical proposal failed to satisfy the minimum requirements of the solicitation). § Unreasonable past performance evaluation – E. g. , MLU Servs. , Inc. , B-414555. 3, B 414555. 6 (July 17, 2017) (finding that the agency unreasonably considered the past performance of a firm that was not proposed to perform any portion of the work). § Unreasonable cost or price evaluation – E. g. , NCI Info. Sys. , Inc. , B-412870. 2 (Oct. 14, 2016) (finding that the agency failed to demonstrate that the awardee’s low price was consistent with its technical approach). § Inadequate documentation of the record – E. g. , Threat Mgmt. Grp. , LLC, B-413729 (Dec. 21, 2016) (finding that the record was so limited that GAO could not conclude that the protested task order was within the scope of the underlying contract). § Flawed selection decision – E. g. , CALNET, Inc. , B-413386. 2, B-413386. 3 (Oct. 28, 2016) (finding that the agency’s best value tradeoff decision relied entirely on adjectival ratings in finding the proposals equivalent under the non-cost evaluation factors, rather than considering the identified strengths and weaknesses and the evaluators’ ranking of proposals). Source: GAO Bid Protest Annual Report to Congress for Fiscal Year 2017 18 © Piliero. Mazza PLLC 2018

Where to File a Size/Status Protest § U. S. Small Business Administration (“SBA”) • • Size SDVOSB (non-VA procurements) ED/WOSB HUBZone § U. S. Department of Veterans Affairs’ Center for Verification and Evaluation (“CVE”) • • SDVOSB 19 © Piliero. Mazza PLLC 2018

Why File a Size/Status Protest? § Size/status protests offer advantages over bid protests • • Less time consuming and costly to prepare/file If successful, the awardee or presumed awardee becomes ineligible, so the agency must go to the next-in-line offeror § Size/status protests are relatively easy to file and may take on a life of their own after filed • • Protester must offer “specific facts, ” but that bar is low • • SBA/CVE may investigate issues not raised in the protest For example, a protester does not need to know the identity of the awardee’s subcontractor to allege affiliation with the subcontractor Once the protest is filed, the burden is on protested entity to prove it is eligible 20 © Piliero. Mazza PLLC 2018

Who Can File an SBA Protest? § May be filed on set-aside prime contracts and subcontracts by • • • A disappointed small business offeror • • SBA A large business, if only one small business submitted an offer Prime contractor or other eligible subcontractors for subcontracts awarded under the Subcontracting Program CO § Unique issues for task orders – to be discussed… 21 © Piliero. Mazza PLLC 2018

When and How to File a SBA Protest? § Deadline for disappointed offerors is five business days after they first learn the identity of the awardee or presumptive awardee § CO and SBA may file an SBA protest at any time § A size or eligibility protest is typically filed as a letter • • Addressed to and filed with the CO, who then sends it to SBA Separate letters for protests involving size and eligibility issues § For size protests only, you can also file your protest via telephone to the CO, as long as you follow up in writing within 24 hours § After the protest is filed with the CO, the CO will forward it to the appropriate SBA office for processing § SBA’s Office of Hearings and Appeals (“OHA”) handles appeals in size, SDVOSB, WOSB, and EDWOSB cases 22 © Piliero. Mazza PLLC 2018

When and How to File a VA Protest? § Deadline for disappointed offerors is five business days after they first learn the identity of the awardee or presumptive awardee § CO and disappointed offerors may protest SDVOSB or VOSB status • Interested party must deliver protest to CO in person, by email, by facsimile, by express delivery service, or by USPS § CO forwards protest to Director of CVE § CVE’s determination may be appealed to the Executive Director of VA’s Office of Small And Disadvantaged Business Utilization § As of 10/01/18, OHA will handle CVE SDVOSB protests and appeals 23 © Piliero. Mazza PLLC 2018

Tips for Filing Size/Status Protests § Make sure you file on time • • Pre-award notice starts the clock Bid opening starts the clock § Follow-up with the CO to ensure your protest went to SBA/CVE § Must be sufficiently specific in your contentions • SBA/CVE gives greater weight to specific, signed, factual evidence, rather than general, unsupported allegations • • • Google is your friend Helpful to include supporting documents Cite relevant case law 24 © Piliero. Mazza PLLC 2018

Tips for Filing Size/Status Protests § You get one bite at the apple, so make it count § For size protests, focus on different types of affiliation that may be implicated • SBA’s affiliation rules look to whether one firm has the power to control another, or a third firm has the power to control both • • Control can be affirmative or negative Affiliation may arise based on things like stock ownership, common management, joint ventures, identity of interest between family members, firms with common investments or economic dependence, ostensible subcontractor arrangements, and the totality of the circumstances 25 © Piliero. Mazza PLLC 2018

Tips for Filing Size/Status Protests § For eligibility protests, focus your arguments and evidence on the key requirements for the program • • Cannot protest 8(a) status • SDVOSB/WOSB/EDWOSB cases typically challenge whether the company is majority owned/controlled by a service-disabled veteran or woman HUBZone protests typically challenge 35% and principal office requirements 26 © Piliero. Mazza PLLC 2018

#1 Size/Status Protest Defense Tip: Be Proactive! § The best (and often only) defense is to prepare before the protest is filed and before your proposal is submitted • Many potential size/status protest issues involve matters that could be changed before the proposal is submitted • If protested, SBA/CVE will determine your status as of the date the proposal was submitted • There is only so much counsel can do to defend circumstances that existed as of when you submitted your initial proposal with price – “It is what it is” • Therefore, the key is to understand address potential size/status protest vulnerabilities before the proposal is submitted 27 © Piliero. Mazza PLLC 2018

Tips for Being Proactive § Undergo annual and pre-bid checkups • Review corporate documents for negative control issues, particularly after a change in ownership • • • Complete all fracture steps if you recently severed ties with an affiliate • • Be mindful of issues created by letters of intent Take steps to diversify customers and revenue sources Write your teaming agreement, proposal, and subcontract with an eye toward mitigating ostensible subcontractor affiliation Implement and utilize written procedures for making size and eligibility representations 28 © Piliero. Mazza PLLC 2018

Unique Issues for Task Order Protests § SBA protests • Competitor can only file an SBA protest against a GSA schedule or GWAC task order if the task order explicitly required offerors to recertify size or status as of the proposal date for the task order • But, SBA or CO can file a protest at any time § Bid protests • GSA schedule task orders can be protested to GAO or COFC, regardless of dollar value • However, with limited exceptions, IDIQ/GWAC task orders can only be protested to GAO and only if the task order value is over a certain threshold § >$10 M for civilian agencies § >$25 M for Do. D, NASA, and Coast Guard 29 © Piliero. Mazza PLLC 2018

Other Recent Developments § Electronic filing system at GAO • • Effective for all cases after May 1, 2018 Filing fee of $350 Filing deadline is still 5: 30 pm, not midnight COFC and GAO overall protest activity is increasing § Do. D draft guidance on cybersecurity indicates this will likely become more prevalent in bid protests soon § Significant protest reform on the horizon? • • • RAND Study of Bid Protests Choice between COFC and GAO? 809 Panel 30 © Piliero. Mazza PLLC 2018

Questions? Megan Connor mconnor@pilieromazza. com Jon Williams jwilliams@pilieromazza. com 888 17 th Street, NW 11 th Floor Washington, DC 20006 202 -857 -1000 This material is presented with the understanding that the author is not rendering any legal, accounting, or other professional service or advice. Because of the rapidly changing nature of the law, information contained in this presentation may become outdated. As a result, the user of this material must always research original sources of authority and update information to ensure accuracy when dealing with a specific legal matter. In no event will the author be liable for any damages resulting from the use of this material. © Piliero. Mazza PLLC 2018