2.6 Protests Don Shannon

What is a Protest? Discussed in FAR Part 33.1 Is “a written objection by an interested party” to (1) a solicitation or other request by an agency for offers for a contract for the procurement of property or services (2) The cancellation of the solicitation or other request (3) An award or a proposed award of the contract (4) A termination or cancellation of an award Must contain written objection that the termination or cancellation is based in whole or in part on improprieties concerning the award of the contract.

When are protests typically filed? Pre-award Solicitation Phase Down select (exclusion from the competitive zone) Post Award Time limit is important – 10 Days following contract award or 5 days after a debriefing date is offered

What are the grounds for protests? Pre-Award Restrictive requirements Inappropriate Sole-Source Requirements Unclear or ambiguous Evaluation Criteria Ambiguous Requirements Inappropriate Exclusion from the “Competitive Range”

Post Award Unfair evaluation criteria Failure to evaluate as advertized Unreasonable “Best Value” determination Unequal Treatment Failure to conduct meaningful discussions SBA Size protest

Where are Protests Filed Agency Protest Prior to protest all parties should avail themselves of opportunities to resolve issue(s) Agency protest information contained in Solicitation Protestor may request independent review at at a level above the PCO GAO Protests

When to File If issue is with selection criteria protest must be filed before proposal due date. If acquisition is sealed bid protest must be filed before bid opening If protest is with selection process then must be within either 10 days of award decision 5 days of offer for debrief (which must be made within 3 days of award).

What to file (i) Name, address, and fax and telephone numbers of the protester. (ii) Solicitation or contract number. (iii) Detailed statement of the legal and factual grounds for the protest, to include a description of resulting prejudice to the protester. (iv) Copies of relevant documents. (v) Request for a ruling by the agency. (vi) Statement as to the form of relief requested. (vii) All information establishing that the protester is an interested party for the purpose of filing a protest. (viii) All information establishing the timeliness of the protest.

Upon Receipt of a Protest Award is delayed or if awarded contract performance typically stayed Exceptions for urgent requirements Must be by head of the Agency CO prepares a protest file with copies of all pertinent documents for legal counsel Protestor is allowed access to file subject to “protective orders” which bar disclosure of proprietary information. Facts are reviewed with the assistance of counsel and a determination is made. (if ‘agency protest’) or agency report is submitted to GAO is protest was filed with them. Protestor has 10 days to rebut If hearing is held (by GAO) Protester has 5 days to rebut Protester is advised of determination – typically within 100 days If protest was resolved by an agency protest protestor can still appeal to GAO

Protest Outcomes Upheld. Protestor files claim for costs within 60 days Small Businesses entitled to compensation for consultants, expert witnesses, attorney’s fees Proposal costs also may be paid Potential for awardee to pay some or all of costs if culpable. Dismissed Appeal is possible