Federal Contractors Forum

Federal Source Selection, Debriefings, and Protests

February 23, 2012

James E. Krause, Attorney

219 N. Newnan Street, Jacksonville, Florida 32202 Dial 904.353.5533 Email jimkrause@krauselaw.net

FEDERAL CONTRACT AWARD PROTESTS

Forum
Who May Protest Jurisdiction Time for Protest Time of Decision Procedures Burden of Proof Standards of Review Interim: Automatic Stay Provisions Remedies

Federal Contracting Agency

Interested parties and others FAR 33.103 Pre and post-award No designated time Various agency procedures, informal in nature Discretionary, but probably same as GAO Agency need for corrective action Agency must delay award or suspend performance unless CICA overrides

General Accountability Office (Comptroller General)

Interested parties 31 USC 3551, with deference to actions in other forums Pre- and post-award, within 10 days of award 100 calendar days (or express option - 65 calendar days) Submission of written reports and optional hearing Presumption of correctness of agency action Violation of statute or regulation; inconsistent with the terms of the solicitation Agency must delay award or suspend performance unless CICA overrides: Protest must be filed within 5 days for automatic stay. Recommend that actions agency re-compete, terminate, or award; contract costs; attorneys' fees; bid or proposal costs File bid protest Action in COFC

Court Of Federal Claims

Disappointed bidders and interested parties 28 USC 1491(a)(1) and (b)(2) Pre-and post-award No designated time Evidentiary trial, including discovery Clear and convincing evidence of violation No rational basis or clear violation of statute or regulation Discretionary temporary restraining order or preliminary injunction

Discretionary; any appropriate remedy

Injunction or declaratory judgment if consistent with national defense; bid or proposal costs Court of Appeals for the Federal Circuit

Appeals

If within jurisdictional time period, begin action again with either GAO or COFC

James E. Krause, P.A. Jacksonville, Florida www.krauselaw.net

PRE-AWARD DEBRIEFING Who is Entitled to a Debriefing? When Must the Government Conduct a Debriefing? What is a Timely Request? What Can Not Be Disclosed?
Offerors excluded from the competitive range or otherwise excluded from the competition before award. As soon as practicable after receipt of a timely, written request. However, the contracting officer may refuse the request for a pre-award debriefing if it is not in the best interest of the Government to conduct a pre-award debriefing. (1) (2) A request received by the contracting activity within 3 calendar days after the offeror received notice of exclusion from the competition. (4) Number of offerors Identity of other offerors Content of other offerors proposals Ranking of other offerors Evaluation of other offerors Point-by-point comparisons of a debriefed offerors proposal with other proposals Information prohibited from disclosure by FAR 24.202 or information exempt from release under the Freedom of Information Act (5) The agencys evaluation results of significant elements in the debriefed offerors proposal (6); A summary of the rationale for eliminating the offeror from the competition Reasonable responses to relevant questions about whether source selection procedures contained in the solicitation, applicable regulations, and other applicable authorities were followed in the process of eliminating the offeror from the competition

POST-AWARD DEBRIEFING
Any unsuccessful offeror who has not had a pre-award debriefing. Within 5 days, to the maximum extent practicable, after receipt of a timely, written request for a debriefing. (3)

A request received by the contracting activity within 3 calendar days after the offeror received notice of contract award. (4) Point-by-point comparisons of a debriefed offerors proposal with other proposals (The ratings of a debriefed offeror and the awardee may be disclosed to the second level of evaluation without violating this principle.) Information prohibited from disclosure by FAR 24.202, or information exempt from release under the Freedom of Information Act (5).

What Should Be Discussed?

PAGE 46 Army Source Selection Guide

James E. Krause, P.A. Jacksonville, Florida www.krauselaw.net

The Governments evaluation of the significant weaknesses or deficiencies in the offerors proposal, if applicable; The overall evaluated cost or price (including unit prices) and technical rating, if applicable, of the successful offeror and the debriefed offeror, and past performance information on the debriefed offeror; The overall ranking of all offerors, when any ranking was developed by the agency during the source selection; A summary of the rationale for award; For acquisitions of commercial items, the make and model of the item to be delivered by the successful offeror; and Reasonable responses to relevant questions about whether source selection procedures contained in the solicitation, applicable regulations, and other applicable authorities were followed. Other information, as appropriate.

United States Government Accountability Office (GAO)

GAO PROTESTS
Bid Protest Statistics for Fiscal Years 2005-2009
2010
Cases Filed Cases Closed Merit (Sustain + Deny) Decisions Number of Sustains Sustain Rate Effectiveness Rate (reported)2 ADR3 (cases used) ADR Success Rate4 Hearings 2299 (up 16%) 2226

2009
1989 (up 20%) 1,920

2008
1,652 (up 17%) 1,582

2007
1,411 (up 6%) 1,394

2006
1,326 (down 2% ) 1,274
1

441 82 19% 42% 159 80% 10% (61 cases)

315 57 18% 45% 149 93% 12% (65 cases)

291 60 21% 42% 78 78% 6% (32 cases)

335 91 27% 38% 62 85% 8% (41 cases)

249 72 29% 39% 91 96% 11% (51 cases)

James E. Krause, P.A. Jacksonville, Florida www.krauselaw.net

Disclaimer
All rights are reserved. These materials are designed to provide general information on the seminar topic presented, and are provided with the understanding that the publisher is not engaged in rendering any legal or professional services. Although these materials are prepared by professionals, they should not be used as a substitute for professional services. If legal or other professional advice is required, the services of a professional should be sought.

Questions? Feel free to contact me

James E. Krause, Attorney
219 N. Newnan Street, Fourth Floor Jacksonville, Florida 32202 Telephone 904.353.5533 Email jimkrause@krauselaw.net Twitter @JimContractLaw

James E. Krause, P.A. Jacksonville, Florida www.krauselaw.net