Bid Protests Presented By: Keith Romanowski, Watkins Meegan LLC Dan Herzfeld, Pillsbury
Agenda Who can file What is a protest Why file a protest When to File Where to File Protest Types 2 Proprietary and Confidential
What is a Bid Protest? Written objection by interested party to Federal government procurement solicitation Cancellation of solicitation Award or proposed award Termination or cancellation of award Alleged violation of statute or regulation in connection with a procurement or proposed procurement Prejudicial violation. 3 Proprietary and Confidential
Protest Types Pre award (e.g. terms of solicitation) Post award (e.g. award or proposed award) 4 Proprietary and Confidential
Who can file protest? Interested party Actual or prospective bidder or offeror Direct economic interest 5 Proprietary and Confidential
Who can intervene? Pre Award: All bidders or offerors who appear to have a substantial prospect of receiving an award if protest is denied (GAO only) Post Award: Awardee A party that has an interest in procurement and disposition of case may impair or impede its interest (Court only) 6 Proprietary and Confidential
Where to Protest? Agency Government Accountability Office U.S. Court of Federal Claims Federal Aviation Administration, Office of Dispute Resolution for Acquisition 7 Proprietary and Confidential
GAO Protests Relatively inexpensive Respectable chance of success Automatic stay of award Pre award Automatic stay of performance if timely filed 8 Proprietary and Confidential
GAO Bid Protest Statistics FY 2013 FY 2012 FY 2011 FY 2010 FY 2009 Cases Filed1 2429 (down 2%2) 2,475 (up 5%) 2,353 (up 2%) 2,299 (up 16%) 1,989 (up 20%) Cases Closed 2,5383 2,495 2,292 2,226 1,920 Merit (Sustain + Deny) Decisions 509 570 417 441 315 Number of Sustains 87 106 67 82 57 Sustain Rate 17% 18.6% 16% 19% 18% Effectiveness Rate4 43% 42% 42% 42% 45% ADR5 (cases used) 145 106 140 159 149 ADR Success Rate6 86% 80% 82% 80% 93% Hearings7 3.36% (31 cases) 6.17% (56 cases) 8% (46 cases) 10% (61 cases) 12% (65 cases) 9 Proprietary and Confidential
Timely Filed GAO Protest Pre award Before the time proposals were due Post award Within 10 days of when you knew or should have know of your grounds for protest or Within 10 days of requested and required debriefing under FAR Part 15 10 Proprietary and Confidential
Automatic Stay GAO must notify Agency of protest Within 10 days of contract award or Within 5 days of debriefing, whichever is later 11 Proprietary and Confidential
GAO Process GAO notifies agency of filing triggers stay of performance Protest reviewed for sufficiency Agency report and relevant documents to GAO within 30 days Protester/counsel comments with 10 days of agency report GAO hearing (<10% of protests) GAO decision within 100 days 12 Proprietary and Confidential
Reasons for Sustaining Protests Failure to follow solicitation evaluation criteria Inadequate documentation of the record Unequal treatment of offerors Unreasonable price or cost evaluation 13 Proprietary and Confidential
GAO will not consider Untimely protests Subcontractor protests Small business size standards, NAICS Code classifications, 8(a) determinations Challenge of affirmative finding of responsibility under FAR Part 9 Contract administration 14 Proprietary and Confidential
More on GAO Protests Protective order Disclosure of protected materials prohibited Outside counsel allowed access to all relevant documents Makes client discussions difficult 15 Proprietary and Confidential
Supplemental Protests Additional protests may be filed at any time must be timely under GAO rules New protest based on agency report must be filed within 10 days of receipt 16 Proprietary and Confidential
GAO Protest Sustained Re evaluation of existing proposals Modification of solicitation and final proposal revisions Exclusion of awardee Recommendation of awardee GAO can only make recommendations Recommend reimbursement of protest fees 17 Proprietary and Confidential
What if you lose? Reconsideration, but no appeal with GAO Can file protest at U.S. Court of Federal Claims 18 Proprietary and Confidential
What if you win? Original awardee may file protest at U.S. Court of Federal Claims challenging corrective action GAO protester can also challenge corrective action at the U.S. Court of Federal Claims 19 Proprietary and Confidential
U.S. Court of Federal Claims Timeliness: Post award: 6 year statute of limitations, laches Pre award: Challenge solicitation improprieties before award No automatic stay Must seek injunctive relief preliminary injunction or temporary restraining order When you file is considered in that calculus 20 Proprietary and Confidential
U.S. Court of Federal Claims Protester files: Complaint Motion for Temporary Restraining Order or Preliminary Injunction Motion to Seal & Motion for Protective Order Status Conference with Judge usually within 24 hours sometimes the same day as filing complaint. Administrative Record: Agency usually must present entire record of procurement larger and faster than at GAO. 21 Proprietary and Confidential
Process at Court of Federal Claims TRO/Preliminary Injunction Briefing if Agency will not voluntarily stay award. Cross Motions for Judgment on the Administrative Record. Hearings and discovery unusual. 22 Proprietary and Confidential
Court of Federal Claims Remedies Remedy: Injunction Court Order. 28 U.S.C. 1491(b)(2): 1. Success on the merits 2. Irreparable Harm 3. Balance of Hardships 4. Public Interest Remedy: Bid Preparation & Proposal Costs Appeal to U.S. Court of Appeals for the Federal Circuit (and then to U.S. Supreme Court). 23 Proprietary and Confidential
Prepare to Protest or Not Pre Award: Use the Question & Answer Process Post award: FAR Part 15 entitles you to debriefing Win or lose you should request debrief Request must be in writing within 3 days of notice of award FAR 15.506(d) identifies required information Ask questions about your and awardees evaluation 24 Proprietary and Confidential
Should I Protest? Incumbent good faith protest could result in four to sixth month contract extension Other Factors Strength of protest grounds Current or pending contracts with customer Cost of protest 25 Proprietary and Confidential
What Costs are Recoverable? Protest Costs Expressly unallowable per FAR 31.205 47 f(8) unless incurred pursuant to a written request from Contracting Officer Protest Sustained, GAO generally recommends reimbursement of protest costs: Attorney fees Consultants Expert Witnesses 60 days to file detailed claim for reimbursement Court of Federal Claims cannot generally recover protest costs 26 Proprietary and Confidential
What Costs are Recoverable? Bid Preparation & Proposal Costs Cost principles allow recovery as indirect costs if allocable and reasonable. FAR 31.205 18(c). GAO Usually awarded when no other relief is available. Court of Federal Claims May award such costs, sometimes with other equitable relief 27 Proprietary and Confidential
Questions? 28 Proprietary and Confidential
Contact Us www.watkinsmeegan.com Tysons, VA 8000 Towers Crescent Drive Suite 950 Tysons, VA 22182 P: 703.761.4848 Bethesda, MD 6720 B Rockledge Drive Suite 750 Bethesda, MD 20817 P: 301.654.7555 Annapolis, MD 888 Bestgate Road Suite 401 Annapolis, MD 21401 P: 410.571.7766 Herndon, VA 13665 Dulles Technology Drive Suite 220 Herndon, VA 20171 P: 703.885.8190 lunchandlearn@watkinsmeegan.com 29 Proprietary and Confidential
Presenters Keith Romanowski, Senior Manager Watkins Meegan Keith.Romanowski@WatkinsMeegan.com 703.847.4429 Dan Herzfeld, Counsel Pillsbury Winthrop Shaw Pittman LLP daniel.herzfeld@pillsburylaw.com 703.770.7612 30 Proprietary and Confidential