1. Navigating Bid Protests In The Age Of Trump
Franklin Turner Alexander Major
August 2, 2018

2. Who Are These Guys?
Partners and Co-Leaders of the Government Contracts and Export Controls Group at McCarter & English
Significant experience handling “bet the company” litigation, investigations and bid protests
Clients range from Fortune 100 companies to small businesses
Extensive experience in defense and civilian contracting across multiple industry sectors

3. Agenda What Is A Bid Protest? Where Can You Protest?
What Are The Timelines?
Pre-Award Protests
Post-Award Protests
Understanding The Protective Order
Preparing For A Protest
Recent Legislative Changes

4. What Is A Bid Protest?

5. What Are You Challenging?
All protests challenge some form of Government action or inaction, e.g.
The terms of the RFP or RFQ
Patently ambiguous provisions
Inclusion of improper clauses
The evaluation of offers and resulting source selection decision
Awarding to a company despite an unmitigated Organizational Conflict of Interest
Awarding to an offeror who violated the Procurement Integrity Act

6. How Are Protests Decided?
The most common questions that will be asked include:
Was the award decision consistent with relevant procurement laws and regulations?
Did the evaluation team follow the evaluation criteria that was stated in the RFP/RFQ?
Was the award decision reasonable?
Was the award decision supported with adequate documentation?
The standard of review is highly deferential and focuses on the reasonableness of the Government’s actions
The overwhelming majority of successful protests identify objective and/or procedural errors

7. Typical Protest Remedies
Modification of the Solicitation
Re-Evaluation of Proposals
Re-Opening of Discussions
Solicitation of Revised Proposals
Contract Termination
Partial Recovery of Protest Costs

8. Where Can You Protest?

9. Where Can You Protest?
The protester elects the forum in which it will bring the protest
Agency
GAO
Court of Federal Claims
Choice of forum is critical and has a lasting effect on future proceedings relating to the procurement

10. Key Differences Agency GAO COFC Suspension Of Procurement
Agency
GAO
COFC
Suspension Of Procurement
Automatic suspension if protest filed within 10 days of contract award or 5 days after receipt of requested and required debriefing
Automatic suspension if protest filed within 10 days of contract award or 5 days after receipt of requested and required debriefing and GAO notifies agency within same time period
Temporary Restraining Order and Preliminary Injunction (Always Discretionary)
Discovery Rights
Usually none
“Agency Report” includes relevant documents and factual/legal response to allegations raised in the protest
Potentially significant discovery; at minimum, receipt of Agency’s administrative record
Available Remedies
Broad range of remedies available, depending on the allegations
Full range of remedies available, plus protests costs and attorney’s fees
21% to 29% success rate
Injunction or declaratory judgment; may award bid and proposal preparation costs
24% success rate
Appeal Avenues
No direct appeal, but protester may file a protest at GAO or COFC
No direct appeal, but may seek reconsideration within 10 days of decision or file protest at COFC
Federal Circuit

11. Choice of Forum – GAO Statistics
FY 2017
FY 2016
FY 2015
FY 2014
FY 2013
Cases Filed
2,596
(down 7%)1
2,789
(up 6%)
2,639
(up 3%)
2,561
(up 5%)
2,429
(down 2%)
Cases Closed
2,672
2,734
2,647
2,458
2,538
Merit (Sustain + Deny) Decisions
581
616
587
556
509
Number of Sustains 99
139 68 72 87
Sustain Rate
17%
23%
12%
13%
Effectiveness Rate (reported)2
47%
46%
45%
43%
33%
ADR3 (cases used) 81 69
103 96
145
ADR Success Rate4
90%
84%
70%
89%
86%
Hearings5
1.7%
(17 cases)
2.51%
(27 cases)
3.10%
(31 cases)
4.70%
(42 cases)
3.36%
From the prior fiscal year.
Based on the protester obtaining some form of relief from the agency, as reported to GAO.
Alternative Dispute Resolution.
Percentage resolved without formal GAO decision.
Percentage of fully developed decisions in which GAO conducted a hearing.

12. WHAT ARE THE TIMELINES?

13. Timeliness Overview Defective Solicitation All other protest grounds
Protests based on solicitation defects apparent prior to the deadline for receipt of initial proposals must be filed before the due date for receipt of initial proposals
Protests based on solicitation improprieties subsequently introduced into the solicitation (e.g., through amendments) must be filed prior to the next deadline for receipt of proposals
All other protest grounds
To obtain automatic stay, must be filed the later of 5 days of requested and required debriefing or 10 days of contract award

14. Importance of Timeliness Requirements
Absent extraordinary circumstances, the deadlines are strictly enforced
Untimely protests will (likely) be dismissed even if meritorious
Your company’s legal team and the business capture team need to work together seamlessly

15. GAO Protests: Pre-Protest Timeline
Action
Due Date
Days
From Award
Request the Debriefing
Within three (3) days of when Offeror receives notification of Contract Award 3
Debriefing
To the maximum extent practicable, within five (5) days of the Agency’s receipt of the request 8
Filing of Protests, including Amended or Supplemental Protests
Within ten (10) days of when Protester knew or should have known of the grounds of protest OR
If a debriefing is requested and required, not before the debriefing date offered but within ten (10) days of when the debriefing is held (not applicable to amended or supplemental protest) 10
8 to 18
Automatic Suspension of Performance
If Agency receives the telephonic notification regarding the filing of the Protest from the GAO within ten (10) days of the contract award
If a debriefing is requested and required, within (5) days of the date offered for the debriefing 13

16. GAO Protests: Post-Protest Timeline
Action
Due Date
Days
From Award
Objection to the Agency’s proposed disclosure or nondisclosure of documents
Within two (2) days of the receipt of the Agency’s List 28
Agency’s or Intervenor’s Request to Dismiss the Protest before the filing of the Agency Report
As soon as practicable before the filing of the Agency Report 31
Agency Report on the Protest
Within thirty (30) days of the telephonic notification from GAO to Agency regarding the filing of the Protest, although the GAO may grant extensions upon request on a case-by-case basis – and sometimes, GAO requires expedited document production in advance of Report
Request for additional documents
Within two (2) days of when Protester knew or should have known about the existence or relevance of additional documents, although the GAO may grant extensions upon request on a case-by case basis 33
Comments on the Agency Report
Within ten (10) days of the receipt of the receipt of the Agency Report, although the GAO may establish a shorter period or grant extensions upon request on a case-by-case basis 41

17. GAO Protests: Post-Protest Timeline
Action
Due Date
Days
From Award
GAO Hearing
As soon as practicable following the receipt of the Agency Report and relevant documents
31 or more
Post-Hearing Comments
Within five (5) days of the Hearing, unless directed otherwise by Hearing Officer
36 more
GAO Decision
Within one hundred (100) days of the filing of the Protest
100
Request for Reconsideration
Within ten (10) days of when the basis for reconsideration is known or should have been known
110
Request for costs of filing and pursuing the Protest where Agency takes corrective action
Within fifteen (15) days of when the Protester learned or should have learned that GAO had closed the protest based on Agency’s decisions to take corrective action
N/A
Claim for Costs where GAO recommends that Agency pay the Protester’s costs
Within sixty (60) days of receiving the GAO recommendation
Objections to admission under a Protective Order
Within two (2) days of when the GAO receives an application for admission, although the GAO may consider objections after that time and sometimes requires objections within one (1) day

18. PRE-AWARD PROTESTS

19. Common Pre-Award Protest Arguments
RFP/RFQ Ambiguities
A solicitation is ambiguous if:
It is subject to two or more reasonable interpretations
It contains patent inconsistencies
Request, in writing, that the CO provide written clarification of ambiguous solicitation provisions
A patent ambiguity must be protested prior to submitting a proposal
Once the deadline for receipt of proposals passes, it is too late to protest
You cannot successfully protest the terms of the solicitation in a post-award proceeding
Improper Evaluation Methodology
Unduly Restrictive Specifications

20. POST-AWARD PROTESTS

21. Common Post-Award Protest Allegations
Incorrect Technical Evaluation
Incorrect Price/Cost Evaluation
Lack of Meaningful Discussions
Departure From Stated Evaluation Criteria
Flawed Best Value Decision

22. UNDERSTANDING
THE PROTECTIVE ORDER

23. What Is A Protective Order?
A Protective Order is a binding agreement that governs the release of and access to certain types of data
A party that is not admitted to the Protective Order cannot have access to confidential/proprietary and/or source selection information
Protected information includes:
Any information identified as protected
Any information derived from protected information
If one or more parties wouldn’t want the information to be revealed, it is probably protected
Violation of a protective order may result in:
Dismissal of the protest
Exclusion from the procurement
Significant sanctions against counsel

24. Protective Order Admissions
Who is allowed?
Outside Protest Counsel
Outside Expert Consultants
In-House Litigation Counsel
Who is not allowed?
Other Employees of the Offerors
Other Employees of the Offerors’ Teammates/Subcontractors
Anyone Involved in “Competitive Decisionmaking”

25. “Competitive Decisionmaking” Certification
“I hereby certify that I am not involved in competitive decisionmaking for or on behalf of any party to this protest or any other firm that might gain a competitive advantage from access to material disclosed under the protective order.”
“[N]either I nor my employer provides advice concerning or participates in decisions about
marketing or advertising strategies,
product research and development,
product design, or
competitive structuring and composition of bids, offers, or proposals
with respect to which the use of protected material could provide a competitive advantage.”

26. Expert/Consultant Admissions
In order to be admitted under a Protective Order, an expert/consultant:
Cannot be employed by an offeror or any of its teammates
Cannot be engaged in competitive decisionmaking
Cannot have any active or recent consulting arrangements with any of the parties to the protest
Cannot have a financial interest, or have a family member with a financial interest, in any of the parties to the protest
Must agree to future exclusions from proposal support

27. Navigating The Protective Order
Before Issuance of the Protective Order
Outside counsel can communicate freely with the internal business team
These discussions should focus on the competition writ large and the perceived errors in the Government’s actions
This is the time to ask questions
All questions are good questions

28. Navigating The Protective Order (Cont’d)
After Issuance of the Protective Order
Communications with the protest team will be restricted
The protest team cannot disclose protected information or ask questions that would reveal protected information
The protest team can ask general questions (providing no context) to secure needed information
The protest team can provide certain limited information
General information regarding procedural protest developments
Redacted copies of pleadings (containing very limited information)
Overall assessment of the likelihood of success

29. PREPARING FOR A PROTEST

30. A Comprehensive Plan Of Attack
The business and legal teams should coordinate all actions well in advance of the protest
The business team should provide the RFP/RFQ to the legal team as soon as the document is issued so that a parallel review can be conducted
Potential solicitation defects should be identified and researched as early as possible
Consider filing a pre-award protest if the Government fails to rectify the issue
In a post-award context, the business and legal team should work hand-in-hand to analyze the debriefing (if required) or Government-provided explanation as to why your company lost the procurement

31. Business Team Responsibilities
Educate the protest team regarding the solicitation, the company’s proposal, areas of concern, ongoing dialogue with the agency, and the agency’s evaluation
Provide the protest team with copies of all important solicitation and evaluation documents
Inform the protest team of any specific concerns and provide updates as necessary
Identify potential experts/consultants

32. Protest Team Responsibilities (Protester)
Review the RFP/RFQ, any bidders’ conference materials, Q&As and all RFP amendments
This will permit an understanding of the requirements and evaluation structure and identification of potential pre-award protest grounds
Understand the proposal
Learn the technical aspects of the procurement
Understand the objectives, strengths and weaknesses of the offeror
Understand the competitor’s objectives, strengths and weaknesses
Review and analyze all communications with the Government
Interview expert consultants
Provide legal advice
Avoid competitive decisionmaking

33. Protest Team Responsibilities (Awardee)
Offer support to the Agency
Legal research and analysis
Preparation of white papers
Maintain frequent communication
Prepare arguments rebutting protest allegations

34. RECENT LEGISLATIVE CHANGES

35. National Defense Authorization Act
2018 NDAA
National Defense Authorization Act
Signed by POTUS on December 12, 2017
Key areas of protest reform include:
Enhanced post-award debriefing rights
Pilot program on payment of costs for denied GAO protests

36. Enhanced Post-Award Debriefing Rights
Section 818 – within 6 months of passage of law, the Secretary of the DoD must revise the DFARS to require that all post-award debriefings include, at a minimum:
Disclosure of the Agency’s source selection award determination
Contract must be in excess of $100M
If award is between $10M and $100M with a small business or nontraditional defense contractor, the company must be able to request such disclosure

37. Enhanced Post-Award Debriefing Rights (Cont’d)
Must also include . . .
A requirement for a written or oral debriefing for all contract awards and task or delivery orders valued in excess of $10M
“Robust procedures” to protect the confidential and proprietary information of all offerors
Within 2 business days of a debriefing, offerors are now allowed to submit additional questions relating to the debriefing
Agency must respond in writing to the questions within 5 business days after receipt of the questions

38. It’s Already Here! Implemented via Class Deviation on March 22, 2018
Offerors have 2 business days to submit questions after receiving the debriefing
The Agency must respond in writing within 5 business days
Debriefing not concluded until after the Agency responds to the offeror’s questions

39. Practical Impacts of Section 818
Potential extension of CICA stay (triggered by close of debriefing)
Companies may decline to file protests after reviewing the redacted source selection information and receiving additional information in response to follow-up questions from debriefing
Redactions still leave a lot of the story “untold” and companies may still want to protest if the material provided doesn’t “smell” right

40. Pilot Program on Payment of Costs
Section 827– DoD Secretary is required to carry out a pilot program to determine the effectiveness of requiring contractors to reimburse DoD for costs incurred in processing “covered protests”
A “covered protest” is
One that is denied in an opinion issued by the GAO
Filed by a party with revenues in excess of $250M during the previous year; and
Filed on or after October 1, 2019 and on or before September 30, 2022

41. Practical Impacts of Section 827
Much is undefined (e.g., no definition of processing costs)
Industry frustration over “punitive” measures
Purpose of protesting is to make sure the Government is doing its job. Why should anyone have to pay for that?
Many will game the system
Simply withdraw the protest before GAO issues its decision
May increase protest volume at the COFC

42. THAT WAS A LOT! Questions? We’re here to help…
Alexander W. Major | Partner McCARTER & ENGLISH, LLP T: C: F:
Franklin C. Turner | Partner McCARTER & ENGLISH, LLP T: C: F: