1 WARFIGHTER SUPPORT STEWARDSHIP EXCELLENCE WORKFORCE DEVELOPMENT WARFIGHTER-FOCUSED, GLOBALLY RESPONSIVE, FISCALLY RESPONSIBLE SUPPLY CHAIN LEADERSHIP DEFENSE LOGISTICS AGENCY AMERICA’S COMBAT LOGISTICS SUPPORT AGENCY DEFENSE LOGISTICS AGENCY AMERICA’S COMBAT LOGISTICS SUPPORT AGENCY WARFIGHTER SUPPORT STEWARDSHIP EXCELLENCE WORKFORCE DEVELOPMENT Protests & Disputes Jason Morgan DLA Counsel-Aviation April 2016

2 WARFIGHTER SUPPORT STEWARDSHIP EXCELLENCE WORKFORCE DEVELOPMENT WARFIGHTER-FOCUSED, GLOBALLY RESPONSIVE, FISCALLY RESPONSIBLE SUPPLY CHAIN LEADERSHIP 2 What is a Protest? Written Complaint Regarding a Procurement Can Anybody Protest? –Must be an Actual or Prospective Offeror with a Direct Economic Interest in the Procurement

3 WARFIGHTER SUPPORT STEWARDSHIP EXCELLENCE WORKFORCE DEVELOPMENT WARFIGHTER-FOCUSED, GLOBALLY RESPONSIVE, FISCALLY RESPONSIBLE SUPPLY CHAIN LEADERSHIP 3 Why Does the Government have a Protest System? The Deficit Reduction Act of 1984 –-Competition in Contracting Act (CICA): Goal was greater use of Competitive Procedures –- “shining the light of publicity on the procurement process” –- To ensure that federal procurements are conducted reasonably and in accordance with applicable statutes and regulations.

4 WARFIGHTER SUPPORT STEWARDSHIP EXCELLENCE WORKFORCE DEVELOPMENT WARFIGHTER-FOCUSED, GLOBALLY RESPONSIVE, FISCALLY RESPONSIBLE SUPPLY CHAIN LEADERSHIP 4 10/1/ Different Types of Protests Contracting Officer Agency-Level in Accordance with Executive Order Government Accountability Office (or Court of Federal Claims)

5 WARFIGHTER SUPPORT STEWARDSHIP EXCELLENCE WORKFORCE DEVELOPMENT WARFIGHTER-FOCUSED, GLOBALLY RESPONSIVE, FISCALLY RESPONSIBLE SUPPLY CHAIN LEADERSHIP 5 10/1/ CICA STAY (i.e., the stop work order) Purpose of the Stay is to maintain a “status quo” Pre-Award: Can’t make the Award Post-Award: The 10/5 Rule –Protest received within 10 days of award or within 5 days of a timely requested and required debriefing.

6 WARFIGHTER SUPPORT STEWARDSHIP EXCELLENCE WORKFORCE DEVELOPMENT WARFIGHTER-FOCUSED, GLOBALLY RESPONSIVE, FISCALLY RESPONSIBLE SUPPLY CHAIN LEADERSHIP 6 10/1/ Nature of Protest Review: Is the solicitation/award in accordance with law/regulation? Is the Agency action reasonable?

7 WARFIGHTER SUPPORT STEWARDSHIP EXCELLENCE WORKFORCE DEVELOPMENT WARFIGHTER-FOCUSED, GLOBALLY RESPONSIVE, FISCALLY RESPONSIBLE SUPPLY CHAIN LEADERSHIP 7 10/1/ How is a Stay lifted? CO or Agency-Level Protest: Usually a decision on the Protest (alternately an override) GAO Protests: Either a decision on the protest (takes up to 100 days) or a stay override by Head of Contracting Activity (based on either Urgency or Best Interests of Government)

8 WARFIGHTER SUPPORT STEWARDSHIP EXCELLENCE WORKFORCE DEVELOPMENT WARFIGHTER-FOCUSED, GLOBALLY RESPONSIVE, FISCALLY RESPONSIBLE SUPPLY CHAIN LEADERSHIP 8 What is Not Protestable Contract Administration. The protest review is the reasonableness of the contracting officer’s award decision – the contracting officer is entitled to rely upon the representation of the offeror. HOWEVER: if something is not right: the contracting officer wants to know (i.e., we want to get it right). 10/1/2016 8

9 WARFIGHTER SUPPORT STEWARDSHIP EXCELLENCE WORKFORCE DEVELOPMENT WARFIGHTER-FOCUSED, GLOBALLY RESPONSIVE, FISCALLY RESPONSIBLE SUPPLY CHAIN LEADERSHIP 9 Other Types of Protests Small Business Size-Status Challenges NAICS Code Challenges 10/1/2016 9

10 WARFIGHTER SUPPORT STEWARDSHIP EXCELLENCE WORKFORCE DEVELOPMENT WARFIGHTER-FOCUSED, GLOBALLY RESPONSIVE, FISCALLY RESPONSIBLE SUPPLY CHAIN LEADERSHIP 10 Disputes Governed by FAR Rare Typically Resolved Informally by the Contracting Officer Formalized by the Submission of a Claim 10/1/

11 WARFIGHTER SUPPORT STEWARDSHIP EXCELLENCE WORKFORCE DEVELOPMENT WARFIGHTER-FOCUSED, GLOBALLY RESPONSIVE, FISCALLY RESPONSIBLE SUPPLY CHAIN LEADERSHIP 11 Claims Must be submitted within 6 years of when the claim accrued. Contractor has a duty to proceed. See FAR (i). 10/1/

12 WARFIGHTER SUPPORT STEWARDSHIP EXCELLENCE WORKFORCE DEVELOPMENT WARFIGHTER-FOCUSED, GLOBALLY RESPONSIVE, FISCALLY RESPONSIBLE SUPPLY CHAIN LEADERSHIP 12 Disputes Process Submit Claim Boards of Contract Appeals Court of Federal Claims Court of Appeals for the Federal Circuit Supreme Court of the United States 90 Days12 Months 120 Days60 Days C.O. Decision 60 Days

13 WARFIGHTER SUPPORT STEWARDSHIP EXCELLENCE WORKFORCE DEVELOPMENT WARFIGHTER-FOCUSED, GLOBALLY RESPONSIVE, FISCALLY RESPONSIBLE SUPPLY CHAIN LEADERSHIP 13 Jason Morgan: Contact Information

14 WARFIGHTER SUPPORT STEWARDSHIP EXCELLENCE WORKFORCE DEVELOPMENT WARFIGHTER-FOCUSED, GLOBALLY RESPONSIVE, FISCALLY RESPONSIBLE SUPPLY CHAIN LEADERSHIP 14 DEFENSE LOGISTICS AGENCY AMERICA’S COMBAT LOGISTICS SUPPORT AGENCY DEFENSE LOGISTICS AGENCY AMERICA’S COMBAT LOGISTICS SUPPORT AGENCY WARFIGHTER SUPPORT STEWARDSHIP EXCELLENCE WORKFORCE DEVELOPMENT