Protests A Contractors Perspective

1. Protests A Contractors Perspective Cheryl L. Nilsson Vice President, Contracts TYBRIN Corporation cheryl.nilsson@tybrin.com 850-337-2609

2. Perspectives on Protests • From the GAO • Statistics • Tips • The “Hot” Protest Issues • From Contractors • Decision to Protest • Opportunities to Compete • Access to Information • Level Playing Field • The Debriefing • “A Fair Shake”

3. From the GAO -Protests Statistics

4. From the GAO • GAO will support the Agency when Decision is: • Reasonable • Supported • Documented • Facts control the Outcome • Lessons Learned • Document Decisions Contemporaneously • Agency & Offeror must follow ground rules set forth in Solicitation • Discussions: • Need to be meaningful, not misleading • Treat offerors fairly, not equally • CO has a lot of Discretion on Coverage • Focus on using discussions to “maximize Governments ability to get best value • Must discuss weakness – can discuss strengths. • Offerors must listen and be responsive.

5. What’s “Hot” • OCI • Significant deference to CO plan approval if agency does/documents a thorough review. • Test for “Unequal Access/Unfair Competitive Advantage” (ARINC 77 Fed. Cl. 196 (2007) • Insight beyond that expected of a typical Government Contractor • K had materials related to SOW/Spec • Some other preferred treatment occurred • Cost Realism- Guard Against Unsupported Claims • How to Do it Team Boss B-298865.3 (12/28/07) • How Not to do it –Magellan Health Services B-298912 (Jan 5, 2007) • Evaluate Technical with Cost-Do the cost proposed cover the performance evaluated • Past Performance • “Say one thing, do something else” • Unequal Effort

6. From the Contractor • Decision to Protest • Relational Risks– The “Whine” Factor • Integrity is Key • Corporate Reputation and Strong Customer Relations Critical to Long term Success • Financial & Time Commitment • “Outside” Counsel required for “Protected” information • $300-$800 per hour X 3 • “Experts” • Recovery if prevail – 10% • Diversion of Resources Talent • Likelihood of “success” –VERY low • “Success” = Award of Contract (not protest sustained) • Facts must be Compelling

7. From the Contractor • The Facts Supporting a Protest • Pre-RFP/RFP • Equitable access to information • Appearance of open competition • “Wired” • Discussions • Openness • Serious consideration of Proposal • The Debriefing

8. The Facts … • The Debrief -- FAR 15.606 • Choice Orally or in Writing, by electronic means, or any other method acceptable to the contracting officer • CO normally chairs. Individuals conducting the Evaluations shall provide support. • At a Minimum Should Include: • (1) Evaluation of offeror’s significant weaknesses or deficiencies in the offeror's offer. • (2) Overall evaluated cost and technical rating of the awardee and the debriefed offeror. • (3) The overall ranking of each offer. • (4) A summary of the rationale for the award. • (5) In the case of a proposal that includes a commercial item that is an end item under the contract, the make and model of the item being provided by the awardee. • (6) Reasonable responses to relevant questions posed by the debriefed offeror as to whether source selection procedures set forth in the solicitation, applicable regulations, and other applicable authorities were followed by the agency. • Shall not include: • a point-by-point comparison of the debriefed offeror's proposal with other proposals; • information exempt from disclosure under the Freedom of Information Act, such as trade secrets, privileged or confidential manufacturing processes and techniques, and privileged or confidential commercial and financial information.

9. The Debrief • Significant CO Discretion - Wide Variation • Air Force –(3 yr., $480 M, Engineering Services) • SSA Offered Bidders a Face-to- Face Debriefing at Contractor’s Facility • Led by SSET Chair – Fully engaged in Entire Process • Debriefing Team included all of the Senior Members of Evaluation Team • Debriefing Slides were the Exact Slides Presented to the SSA for Decision • Provided to Contractor in advance for Review • Contractor Provided Questions in Advance for Debriefing Team Consideration • Debriefed from SS Slides (with active discussion), then answered K’s written questions and supplemental questions from debrief. • SSD minimal redactions – easy to see the reason for selection

10. The Debrief • Significant CO Discretion - Wide Variation (Cont) • NASA – 10 year Engineering Services $140M. • Released Comprehensive “Source Selection Statement” that included: • Source Evaluation Board (SEB) Findings on all Bidders in Advance: • Ratings on all Factors; • Strengths & Weaknesses, • Past Performance Rating, • Proposed and Probable Costs and a narrative cost analysis • Source Selection Decision • Ranked Offerors with extensive narrative on rationale • Highlighted where he disagreed with the SEB • Did a further comparison between the top two, identifying major discriminator • Short Trade-off analysis – even though selected the high technical, low cost proposal emphasizing high rating for past performance

11. The Debrief • Significant CO Discretion - Wide Variation (Cont) • Air Force (10 year, Engineering Services, $300M) • SSDD and SSET Briefing Slides provided in Advance • Written Questions requested • SSDD – • Apparent “tie” – selection decision support very general • The Debriefing Guarded • One person did all talking from a script • No SS evaluation team members present • The CO role minimized • Answers to questions – Vague • Permitted a teleconference --Placed phone so those listening could not hear.

12. Summary • No Such Thing as “Protest Proof” • Position for Success • Fair Source Selection • Experienced SS Eval Team with a Stake in the Results • Contemporaneous Documentation • Extra Caution/Documentation on “Hot” Spots • SSA Decision Based on Verifiable Differences • Maximum Exchange on Debriefing

13. ?s