Shlomo D. Katz BROWN RUDNICK LLP

1. Ask Not What the Bid Protest Can Do for You, but What You Can Do for the Bid Protest! Shlomo D. Katz BROWN RUDNICK LLP

2. Outline • What is a bid protest? • Why should a proposal manager care? • What is the proposal manager’s role before and during proposal preparation? • What are common protest grounds? • What are the bid protest procedures? • What is the proposal manager’s role after award and during a protest? • How does an offeror decide whether to protest?

3. What is a bid protest? “The laws and regulations that govern contracting with the federal government are designed to ensure that federal procurements are conducted fairly. On occasion, bidders or others interested in government procurements may have reason to believe that a contract has been, or is about to be, awarded improperly or illegally, or that they have been unfairly denied a contract or an opportunity to compete for a contract.” Bid Protests at GAO: A Descriptive Guide, 9th edition, p.1 (Government Accountability Office, 2009)

4. Why should a proposal manager care? • Your proposal may be “on trial”! • Understanding the risks of a protest can help you prepare a better proposal. • You have the last clear chance to submit a compliant proposal which will be eligible for award. • You have the opportunity to give the agency a basis for protest-proof evaluation. • You can support a protest because you know your proposal best, or can identify the SMEs who do. • If a protest is sustained, you may have to / be able to do it all again.

5. The proposal manager’s role:Before proposal preparation • Identify ambiguities in the RFP. • Take advantage of the RFP Q&A process (or make a conscious decision not to). • Separate what you know from what you speculate or assume. • Understand that the Government has immense discretion. • Know what can or cannot be protested, and when. • Consult with your attorney about potential legal issues.

6. The proposal manager’s role:During proposal preparation • Account for ambiguities in the RFP. • Write a compliant proposal. • Include in the proposal any information you want the Government to consider. • Separate what you know from what you speculate or assume. • Understand that the Government has immense discretion. • Know what can or cannot be protested, and when.

7. Your proposal should: • Make clear what you are promising and what you are not promising; • Demonstrate cost or price realism by relating actions and deliverables to resources; • Not be based on information you have no right to have; and • Not promise anything you can’t or won’t deliver.

8. What Are You Promising? • Promises are like crying babies in a theater, they should be carried out at once. Norman Vincent Peale • Losers make promises they often break. Winners make commitments they always keep. Denis Waitley • We must not promise what we ought not, lest we be called on to perform what we cannot. Abraham Lincoln

9. What Are You Promising? • “We will . . .” • “We will . . . if . . .” “We will complete installation of the system by January 1, 2015 if the Government provides the Government-furnished servers listed in Attachment A by December 1, 2014.” “We will tear down the building by January 1, 2015 if the Government vacates the building and removes all of its property by December 1, 2014.”

10. What Are You Promising? • “The following components are included in the price: . . .” • “The following components are required for system operation but are not included in this proposal: . . .” “Batteries not included” • “This proposal is conditional on the Government providing . . .” Do not say: “The following components will be provided by others: . . .”

11. Traceability • BAD - “Our proposal includes all the necessary equipment.” • BETTER - “Our proposal includes bulldozers and front-end loaders.” • BEST - “Our proposal includes two Caterpillar 953D’s and one Komatsu WB142-5 for three calendar days.”

12. What are common protest grounds pre-award? • Solicitation improprieties • Ambiguities • Overly restrictive, anti-competitive specifications or requirements • Specifications contain your proprietary data • Response time is too short • Improper clauses included • Solicitation is improperly set aside or not set aside • Bias (but ...)

13. What are common protest grounds post-award? • Evaluation and failure to make award • Failure to follow evaluation criteria or other RFP requirements • Failure to make a proper tradeoff/best value analysis • Improper assignment of weaknesses/failure to assign strengths to your proposal • Improper assignment of strengths/failure to assign weaknesses to the awardee’s proposal • Cost/price realism • Definitive responsibility criteria (“compliance”) • Bias (but ...)

14. Additional common protest grounds • Exclusion from the competitive range. • Cancellation of the RFP. • Rejection of late or non-compliant proposal. • Organizational conflicts of interest (“OCIs”). • Awardee’s size status / affiliation / ostensible subcontractor.

15. Examples of winning protests • Agency's evaluation did not follow evaluation criteria. • Agency's evaluation relied on factors not identified in the solicitation. • Agency's evaluation of offerors' experience relied on distinctions between offerors' experience not supported by the record. • Source selection decision was based on a flawed technical evaluation. • Source selection decision considered an undisclosed evaluation criterion.

16. More examples of winning protests • Rejection of small business’ offer constituted a non-responsibility determination that should have been referred to the Small Business Administration. • Agency notice of intent to issue a sole-source contract did not accurately describe the services to be furnished and thus did not permit prospective sources to demonstrate their ability to meet the agency's requirements.

17. More examples of winning protests • The agency did not meaningfully evaluate an important section of the awardee's technical proposal, and the agency, in defending the protest, states its intent to enter into post-award negotiations with the awardee regarding the protested aspects of the awardee's technical approach. • Agency did not reasonably support claim that only one firm is capable of meeting the agency's needs. • Agency’s proposed sole source award was longer than necessary to meet urgent need.

18. Examples of winning size protests • Awardee is affiliated with other companies and is large. • Small business prime was unduly reliant on a large business subcontractor. • Mentor-protégé arrangement was a sham when 8(a) protégé brought very little to the joint venture relationship in terms of resources and expertise and the project manager was employee of the subcontractor.

19. Common reasons protests are denied • Agency's evaluation was reasonable and in accordance with the solicitation evaluation criteria. • Protestor merely disagrees with the agency’s technical evaluation. • Price/technical tradeoff was reasonable where source selection official reasonably identified technical distinctions between competing proposals and specifically determined that higher technically rated proposal represented best value despite higher price.

20. Common reasons protests are denied • Although proposal offered to comply with solicitation requirements, it did not explain how protester would do so. • Agency reasonably determined that proposal evidenced lack of understanding of requirements. • Agency reasonably determined that proposal did not demonstrate that protester had experience performing solicitation tasks.

21. Common reasons protests are denied • Allegation of bias or favoritism was speculative. • Incumbent advantage is not improper. • Protest is untimely.

22. Bid Protest Procedures:Where can protests be filed? • The agency • The Government Accountability Office (“GAO”) • The U.S. Court of Federal Claims • The Small Business Administration • State and local governments

23. Bid Protest Procedures:Who can protest? “Interested party means an actual or prospective bidder or offeror whose direct economic interest would be affected by the award of a contract or by the failure to award a contract.” GAO Rules -- 4 C.F.R. § 21.0(a)(1)

24. Bid Protest Procedures:What timeliness rules apply? • Solicitation improprieties: before the (next) due date for submission of responses. • Evaluation of proposals and failure to make award: within ten days of award or a “required debriefing” • Five days to get a stay • Special rules for alleged ethics violations. FAR Part 33.1

25. More GAO Bid Protest Procedures • Other interested parties • Protective order • Redactions • Agency report • Supplemental protests • Hearing / outcome prediction conference • Decision • Corrective action • Costs

26. Protective orders “[A] contracting agency is required to provide with its report on the protest all relevant documents to GAO and interested parties. Often these documents contain a company’s proprietary or confidential data or the agency’s source-selection-sensitive information that cannot be released publicly. “GAO may issue a protective order to allow limited access to such “protected” information to attorneys, or consultants retained by attorneys, who meet certain requirements. . . . The protective order strictly controls who has access to protected material and how that material is labeled, distributed, stored, and disposed of at the conclusion of the protest.” Guide to GAO Protective Orders (GAO-06-716SP), p.2 (Government Accountability Office, 2006)

27. More on protective orders • Protestor can request a protective order to protect confidential information its initial filing. • Standard for admission to a protective order / “competitive decision-making.” • Protective orders make meaningful attorney-client communication difficult but not impossible.

28. Redactions

29. The agency report • Contracting officer's statement of the relevant facts • A memorandum of law • Copies of all relevant documents, including, as appropriate: • The protest • The bid or proposal submitted by the protester • The bid or proposal of the firm which is being considered for award, or whose bid or proposal is being protested • All evaluation documents • The solicitation • The abstract of bids or offers • Any other relevant documents

30. The agency report • In appropriate cases, the contracting agency may request that the protester produce relevant documents, or portions of documents, that are not in the agency's possession. GAO Rules -- 4 C.F.R. § 21.3(d)

31. The proposal manager’s role:After award • Make a timely debriefing request. • Have a strategy and prepared questions in advance of a debriefing. • Separate what you know from what you speculate or assume. • Understand that the Government has immense discretion. • Know what can or cannot be protested, and when. • Support organization in making an informed decision whether to protest. • Feed useful information to your attorney.

32. The proposal manager’s role:During a protest • Timely answer your attorney’s questions • Provide concrete information and proposal citations. • Answer the question without making assumptions about why the attorney is asking the question. • Separate what you know from what you speculate or assume. • Understand that the Government has immense discretion. • Know what can or cannot be protested, and when. • Feed useful information to your attorney.

33. Should we protest?

34. Should we protest? • “But they’re our customer!” • Who will benefit from a protest? • Who will benefit from a stay? • How strong is my case? • How much will it cost? • What will we gain (or lose)? • Alternatives • Potential settlement

35. Contact Information: Shlomo D. Katz Counsel Brown Rudnick LLP 202.536.1753 SKatz@brownrudnick.com Please contact me to receive a free copy of my “Subcontract Negotiation Quick Reference Guide”