it doesn t even cost 39 anymore a brief guide to protests

1. It Doesn�t 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 Gov�t 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 Gov�t 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 Gov�t 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 atty�s will bend over backwards for pro se Krs Protective orders Automatic stay Cons Stays relatively easy to override Decisions are advisory Gov�t decisions given deference unless not supported by facts

8. COFC ProtestsPros and Cons for Government Pros None Cons DOJ involved Judges don�t have to follow GAO precedent Judges don�t have to give Gov�t decisions deference Judges don�t 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 Gov�t Cons Very expensive Need lawyer Don�t 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 protest�What 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 PO�ed COFC alert!

12. Now What?? (Con�t) Pull together CO�s statement of fact Basis of memorandum of law Answers protester�s 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 (Con�t) 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 protester�s attorney fees

16. Possible Outcomes (Con�t) GAO denies protest Notify awardee to begin performance PARTEEEEEEE!! (keep in mind Protester can still file at COFC�unlikely, but��) No matter the outcome, learn from mistakes Improve communications/training of tech team Improve documentation Improve debriefing skills

17. Questions?