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What is a Protest? (FAR 33.101). Any written objection by an interested party to:A solicitation; The cancellation of a solicitation;Award or proposed award;A termination or cancellation of an award if based on improprieties concerning the award
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1. It Doesnt Even Cost 39 Anymore A brief guide to protests Edward N. Ramras
Office of the Staff Judge Advocate
Air Force District of Washington
3 May 2007
2. Protest or No protest:
Award made for 767 tankers made to Boeing. Citizens Against Govt Waste makes irate phone call.
-Award made to lowest price, technically acceptable offeror. 3rd lowest priced offeror objects in writing.
- AF cancels solicitation for 8(a) set aside. LMIS, team partner to a 8(a) protests. Protest or No protest:
Award made for 767 tankers made to Boeing. Citizens Against Govt Waste makes irate phone call.
-Award made to lowest price, technically acceptable offeror. 3rd lowest priced offeror objects in writing.
- AF cancels solicitation for 8(a) set aside. LMIS, team partner to a 8(a) protests.
3. Three Types of Protests Agency-FAR 33.103
Before protest is filed use best efforts to resolve concerns. . . through open and frank discussions.
GAO-FAR 33.104
Court of Federal Claims
4. Agency ProtestsPros and Cons for Protesters PRO
Quick (35 days)
Informal
Cheap
Maintain decent relations with agency
Automatic stay of award
Quasi-ADR
CON
No independent decision
Stays in agency
Small likelihood of win
Decision may be inconsistent
Does not stop the clock
5. Agency ProtestsPros and Cons for Agency Pros
Quick
Informal
Cheap
Maintain decent relations with contractor
Chance to correct mistakes without big impact
Quasi-ADR
Agency usually wins
Does NOT stop the clock on suspension of performance Cons
Automatic stay of award
Protesters can still go to COFC or GAO if denied
6. GAO ProtestsPros and Cons for Agency Pros
Relatively fast (100 days filing to decision)
Uniform decisions
ADR available
Decisions are advisory
Stay override available
Govt procedures given deference
Cons
Cheap to file
Easy for pro se Krs
Pro se protests hard to deal with
Not happy? Go to COFC
7. GAO ProtestsPros and Cons for Protesters Pros
Fast
Cheap for pro se Krs
GAO attys will bend over backwards for pro se Krs
Protective orders
Automatic stay Cons
Stays relatively easy to override
Decisions are advisory
Govt decisions given deference unless not supported by facts
8. COFC ProtestsPros and Cons for Government Pros
None Cons
DOJ involved
Judges dont have to follow GAO precedent
Judges dont have to give Govt decisions deference
Judges dont have to give GAO decisions deference
Cases drag on forever
9. COFC ProtestsPros and Cons for Protester Pros
Injunctive relief!
Possible second bite
Looser with filing dates
Massive pain in rear for Govt Cons
Very expensive
Need lawyer
Dont necessarily follow GAO precedent
Not as fast as GAO
10. What to do before a protest Keep good records
E-mails, MFRs, notes, drafts, etc.
Contemporaneous record more believable than post hoc
Make sure you have written record of notification, receipt, and debriefing offer
Give a good debriefing
Schedule it ASAP, make offer in writing. If inconvenient for Kr, let them reschedule. Clock starts running on offered date.
Include lots of facts. Balance between inviting a protest and forcing one.
11. Just got a protestWhat now? Call your lawyer
Are there grounds for dismissal?
Call your tech team
Check availability over next month
Need their help with Agency Report
Notify awardee
Stay award or stop work
Can incumbent continue work?
Perform in the face?
High standard, HCA approval
Protester, GAO get POed
COFC alert!
12. Now What?? (Cont) Pull together COs statement of fact
Basis of memorandum of law
Answers protesters accusations
May trigger reevaluation
Format and content--see Agency regs and policy
Put together Agency report file
All relevant documents
At least 5, possibly more, copies
GAO, Protester, KO, Legal, Intervenor(s)
CD-ROM is good addition but not a substitute for paper
13. GAO Timeline Protest filed
Agency Report to GAO-Day 30
Protester supplemental-Day 40
Agency response to supplemental-Day 50
GAO decision-Day 100 (or earlier)
Early requests for documents, coordination with agency HQ, ADR, GAO hearings, etc. not included. Will not change end date.
14. Possible Outcomes Protest shows obvious flaws in process
Take corrective action which can include:
Get clarifications or hold discussions
Reevaluate technical, past performance, or pricing
Make new best value determination
Possible T4C and new contract award
Early corrective action can save time, money, and effort
If done before AR due date, no massive copying or attorney fees (yet)
The earlier a T4C, the lower the settlement costs
15. Possible Outcomes (Cont) GAO finds for Protester
GAO recommends corrective action
Can include range of remedies including:
Hold discussions
Reevaluate proposals
T4C and re-award
Report back to GAO within specified period on results of corrective action
Agency disregards GAO at own risk!
Pay protesters attorney fees
16. Possible Outcomes (Cont) GAO denies protest
Notify awardee to begin performance
PARTEEEEEEE!! (keep in mind Protester can still file at COFCunlikely, but)
No matter the outcome, learn from mistakes
Improve communications/training of tech team
Improve documentation
Improve debriefing skills
17. Questions?