2014 August 06 2 Agenda Overview of GAO Bid Protests Basic Principles Applicable to Bid Protests PreAward Steps Prior to the receipt of proposals PreAward Steps After receiving proposals ID: 803682
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Slide1
Strategies to Successfully Prevent and Defend Bid Protests
2014, August 06
Slide22
Agenda
Overview of GAO Bid Protests
Basic Principles Applicable to Bid Protests
Pre-Award Steps (Prior to the receipt of proposals)
Pre-Award Steps (After receiving proposals)
Post-Award Steps
Post-Protest
Slide3Bid Protests Overview
Bid Protests are legal
challenges brought by bidders against the way the Government has conducted a
procurement.
An interested
party may protest to the agency, the
Government Accountability Office (GAO), or the United States Court of Federal Claims (COFC).
3
Types of Protests
Pre-Award
Regarding terms of a solicitation or competitive range determination
Post-Award
Regarding an award
Slide4Bid
Protest
Trends
4
4
Slide5Basic Principles:
The Competition in Contracting Act (CICA)
The Competition in Contracting Act (CICA) is a 1984 statute that is the most important law for the purpose of Federal contracting and our
discussion of bid protests
CICA was the first major revision to Federal procurement law since the 1940s
CICA established that full and open competition is the primary goal of Federal procurement
And CICA provided express statutory authorization for GAO to hear bid protests
Policy underlining the requirement for competition and even the protest process: transparency, economy, integrity
5
Slide6Basic Principles:
Surviving a Protest
You will most often win or lose the protest before it is even filed
6
Slide7GAO defines the basic standard of review for a bid protest as:
“The evaluation of an offeror’s proposal is a matter within the agency’s discretion. A protester’s mere disagreement with the agency’s judgment in its determination of the relative merit of competing proposals does not establish that the evaluation was unreasonable. While we will not substitute our judgment for that of the agency, we will question the agency’s conclusions where they are inconsistent with the solicitation criteria and applicable procurement statutes and regulations, undocumented, or not reasonably based
.”
7
Basic Principles:
Surviving a Protest
Slide8Pre-award Steps
It is well established that the government benefits from knowing industry’s capabilities and the industry benefits from knowing the government’s needs. FAR 15.201.
Review RFP critically during its development, focusing on Section L (instructions to offerors) and Section M (evaluation criteria).
Note:
The
f
ocus of this Seminar is
not on pre-award protests, but if received, use as opportunity to re-review Solicitation.
8
Is it clear what the agency expects from offerors?
Do L and M track together?
Do evaluation factors/subfactors truly represent key discriminators/significant requirements?
Can evaluators explain what would make a proposal “outstanding” vs. “acceptable” for a given evaluation factor?
Slide9Key Principles for Source Selection
9
Follow the Solicitation
1.
Treat All Offerors Equally
2.
Document the Record
3.
Slide1010
GAO
will not consider challenges to the terms of a solicitation after the
final date proposals
are submitted; if a contractor believes there is an
inherent flaw
within the terms of the solicitation, they must protest that flaw prior to submitting
a proposal
Follow the Solicitation
1.
Slide1111
GAO states the basic rule as:
“Agencies are required to evaluate proposals based solely on the factors identified in the solicitation, and must adequately document the bases for their evaluation conclusions.
… Although
we will not substitute our judgment for that of the agency, we will question the agency’s conclusions where they are inconsistent with the solicitation criteria, undocumented, or not reasonably based.”
Follow the Solicitation
1.
Slide1212
In
a protest brought
against
an award by the Patent
and Trademark
Office, the solicitation stated the following with respect to an Experience factor
: “The Government is seeking five (5) reference contracts for the offeror who is proposing as the contractor … the Government expects to see contract references that collectively demonstrate experience in the following areas
”
Raytheon submitted the required 5 contract references under the Experience factor and the agency identified 31 weaknesses under this factor.
Follow the Solicitation
1.
Case Study #1:
Raytheon Company, B-404998 (June 25, 2011)
Slide1313
GAO
examined the language of the solicitation and sustained the protest:
“We
think that the agency’s interpretation of the RFP is
unreasonable. Nothing
in the express language of the solicitation supports the agency’s position that each reference had to demonstrate experience in all six
areas. Moreover, an interpretation that each reference had to address all six
areas would render superfluous the term “collectively,” as the agency’s
interpretation
would effectively substitute the word “individually” for the word “collectively.”
Follow the Solicitation
1.
Case Study #1:
Raytheon Company, B-404998 (June 25, 2011)
Slide14Case Study #2
: Exelis Systems Corporation, B-407111 (Nov. 13, 2012)
Another
way an agency can fail to follow the solicitation is by applying an evaluation criteria that is unstated in the solicitation
14
In
a protest brought by Exelis
Systems
against an award by the Department of State, the solicitation
defined
the past performance and experience evaluation factor as:
“The Government will use past performance
information…to assess
the capability of the Offeror…to meet the solicitation performance requirements, including the relevance and currency of the
work experience of the Offeror. In determining relevance, consideration will be given to the similarity of the service performed in hostile, austere, and remote locations; complexity; technology; magnitude of effort; contract scope and type; and schedule
.”
Follow the Solicitation
1.
Slide1515
Exelis
Systems
submitted a proposal that included the required past performance information, however the agency assigned weaknesses to the proposal for failing to provide examples of specific experience with the Department of
State.
These weaknesses were relied upon by the source selection authority, who concluded:
“Exelis’ proposed approach…show a lack of direct contracting experience with the Department of State.”
Exelis Systems argued in its protest that it was improper for the agency to assign a weakness for lack of experience with the Department of State, because the solicitation did not require that specific experience.
Follow the Solicitation
1.
Case Study #2
: Exelis Systems Corporation, B-407111 (Nov. 13, 2012)
Slide1616
Follow the Solicitation
1.
Case Study #2
: Exelis Systems Corporation, B-407111 (Nov. 13, 2012)
GAO
agreed with the protester:
“The RFP did not contain a requirement for an offeror to demonstrate ″direct contracting experience with the Department of State″…While the solicitation required offerors to provide OMSS services at DOS facilities, the evaluation criteria did not inform offerors of the concerns reflected in the record…Specifically, it was not clear from the solicitation that the agency was seeking and would give more credit for experience of the type that DOS found desirable here, that is, general DOS practices or the ways in which DOS differs from other agencies.”
Slide1717
In
the
matter
of Esegur-Empresa de Seguranca, SA, the solicitation stated with respect to the price evaluation
:
“Unrealistically
high, low, or unbalanced prices may serve as a basis for rejection
of the proposal. The
price evaluation will document
the reasonableness and completeness of the total evaluated price.”The
protester argued that the awardee had proposed a price that was so below the government estimate as to be unrealistic. The Agency admitted that it did not assess the awardee’s price for realism but argued that the solicitation
did not require such an evaluation.
Follow the Solicitation
1.
Case Study #3
: Esegur-Empresa de Seguranca, SA, B-407947 (April 26, 2013)
Requirement to follow solicitation applies equally to price
evaluation
Slide1818
GAO disagreed with the agency and found that in this context the language of the solicitation required an evaluation of price reasonableness:
“
Here, notwithstanding the agency’s argument to the contrary, the solicitation contemplated a price realism evaluation of the awardee’s low price … the solicitation advised offerors that ″unrealistically″ low prices may serve as a basis for rejection of a proposal. Implicit in the solicitation’s reference to unrealistically″ low prices is the presumption that the agency would actually consider whether an offeror’s price is in fact unrealistic and, as a consequence, unacceptable.”
Follow the Solicitation
1.
Case Study #3
: Esegur-Empresa de Seguranca, SA, B-407947 (April 26, 2013)
Slide19Key Principles for Source Selection
19
Follow the Solicitation
1.
Treat All Offerors Equally
2.
Document the Record
3.
Slide20A fundamental federal procurement principle is to treat all offerors fairly and equally so as to promote competition
.
Evaluators must evaluate consistently among all offerors.
If evaluators downgrade an offeror for a deficiency, they must downgrade other offerors for the same deficiency. Park Sys. Maint., Inc., B-252453, 93-1 CPD ¶ 466 (June 16, 1993).
If evaluators give credit to one offeror, they should give like credit to another offeror for the same provision. Brican Inc., B-402602, 2010 CPD ¶ 141 (June 17, 2010).
20
Treat All Offerors Equally
2
.
Slide21Raytheon Tech. Svcs. Co. LLC
, B-404655.4, 2011 CPD ¶ 236 (Oct. 11, 2011).
RFP contemplated an award on a best value basis to provide all management, supervision, labor, facilities, and materials necessary to deliver foreign law enforcement training for foreign agencies and nationals.
10 offerors submitted proposals; 7 were in the competitive range.
Protest was sustained where agency treated offerors unequally by assigning strength to awardee's proposal for management feature while failing to credit protester's proposal with a strength for a comparable feature.
21
Treat All Offerors Equally
2
.
Tip:
Give
like credit for strengths across all
offerors
’
proposals. Consistently evaluate features of
offerors’
proposals under the correct evaluation factor.
Slide22Modular Commc’n Sys., Inc
., B-241858, 91-1 CPD ¶ 263 (Mar. 8, 1991).
Forest Service procured the supply of a dispatch console system (multiline and multiposition radio console for use in an Interagency Fire Center).
2 proposals received.
Awardee did not have separate volume controls (material specification), but stated that separate volume controls were not required due to the dynamic range of its receive compressor amplifiers.
In the absence of any substantive explanation from the agency, a plain reading of the requirement and the awardee’s original and clarifying responses showed that the awardee’s automatic system did not meet the requirement for independent level adjustments available to the operator.
GAO found that material specifications were relaxed for one offeror and not the other.
22
Treat All Offerors Equally
2
.
Tip:
Don’t
relax material specifications. Hold all
offerors
to the same standards articulated in the Solicitation.
Slide23SRA Int’l, Inc., B-408624, 2013 CPD ¶ 275 (Nov. 25, 2013).
Best value procurement for coaching and organizational development services.
10 proposals received; 9 were in the competitive range.
GAO sustained protest where record failed to demonstrate that the agency assigned ratings in an even-handed manner. Agency treated protester unequally in assigning its proposal a significant weakness for failing to adequately address organizational strategic planning when failing to label an equally serious weakness in other offerors’ proposals as significant.
23
Treat All Offerors Equally
2
.
Tip:
Similar
failures to demonstrate compliance with a solicitation requirement should be consistently assigned for all
offerors
who do not comply with the solicitation requirement.
Slide24CitiWest Props., Inc
.,
B-274689.4,
98-1 CPD ¶ 3 (Nov. 26, 1997).
Total small business set-aside for real estate asset manager services for single-family properties owned by (or in the custody of) HUD.
12 proposals received; 5 were in competitive range and had discussions.
Agency provided protester opportunity to revise its proposal, which did not constitute meaningful discussions because it wasn’t given the opportunity to respond to the specific weaknesses/deficiencies in its proposal that ultimately resulted in the competitive range determination.
Unequal discussions occurred where one competitive range offeror was advised of areas in its proposal believed to be deficient, but the other competitive range offeror was not
.
24
Treat All Offerors Equally
2
.
Tip:
If you conduct discussions with one
offeror
, you need to conduct discussions with all
offerors
by giving all
offerors
the opportunity to respond to deficiencies, significant weaknesses, and adverse past performance.
Slide25Key Principles for Source Selection
25
Follow the Solicitation
1.
Treat All Offerors Equally
2.
Document the Record
3.
Slide2626
A number of provisions of the FAR address documentation of the procurement record:
FAR 4.801(Documenting the Contract File): requires sufficient documentation to provide “a complete background as a basis for informed decisions at each step in the acquisition process”
FAR 8.405-2(f) (For Federal Supply Schedule orders)
FAR 13.106-3(b) (For Simplified Acquisitions)
Document the Record
3
.
Basic Principles
Slide2727
FAR
Part 15 includes numerous provisions requiring procuring agencies to document the procurement
record
FAR
15.305(a): "strengths, deficiencies,
significant weaknesses"
FAR
15.102(e): oral
presentations
FAR 15.406-3(a): price negotiation and documentation of the “principal elements of the negotiated agreement”
Document the Record
3
.
Basic Principles
Slide2828
Of
particular importance is documenting the Source Selection
Decision
FAR 15.308: "The source selection decision shall be documented, and the documentation shall include the rationale for any business judgments and tradeoffs made or relied on by the SSA, including benefits associated with additional costs. Although the rationale for the selection decision must be documented, that documentation need not quantify the tradeoffs that led to the decision
."
Basic Principles
Document the Record
3
.
Slide2929
GAO's
Bid Protest regulations require agencies to produce a record of documents reflecting the procurement. There is also direction regarding what documents to include in the record in FAR Part 33.
GAO's
bid protest regulations address the required documentation
at 4
C.F.R. § 21.3(d), and include a request for "all evaluation
documents."
FAR
33.104(a)(3)(iii) addresses the agency record in a GAO protest
and includes "all relevant evaluation documents."
Document the Record
3
.
Slide3030
During a GAO protest, these requirements for adequate documentation are translated into the following standard of review
:
“
In order for us to review an agency's evaluation judgment, an agency must have adequate documentation to support its judgment. …While we consider the entire record, including the parties' later explanations and arguments, we accord greater weight to contemporaneous evaluation and source selection material than to arguments and documentation prepared in response to protest contentions. Where an agency fails to provide documentation of its evaluation, it bears the risk that there may not be adequately supporting rationale in the record for us to conclude the agency had a reasonable basis for its evaluation and selection decision.”
Document the Record
3
.
Slide3131
The
Defense Logistics Agency was awarded a contract for the supply and delivery of food items to military locations in Afghanistan. The solicitation
included
a requirement that the contractor meet a 97% “fill rate” for deliveries
and
stated that as part of the past performance evaluation the agency
would evaluate “whether the firm has a successful history of providing
consistently high
fill rates, which meet the contractual requirement of 97%”
The awardee was evaluated as “acceptable” under this past performance criterion, however, the protester pointed out that the awardee’s proposal plainly indicated that the awardee did not have a history of meeting the 97%
fill-rate on previous contracts.
Document the Record
3
.
Case Study #1: Supreme Foodservice, GmbH,
B-405400.3 (Oct
. 11, 1012)
Slide32GAO did not find the agency’s reference to unexplained in-house data to be very persuasive:
“
Although an agency is not required to retain every document generated during its evaluation of proposals, the agency’s evaluation must be sufficiently documented to allow our Office to review the merits of a protest. … The record here does not reflect the basis for the agency’s reliance on a set of fill rates that are higher than the set of fill rates ANHAM provided in its proposal--which generally do not meet the solicitation-specified threshold of 97 percent.”
32
Document the Record
3
.
Case Study #1: Supreme Foodservice, GmbH,
B-405400.3 (Oct
. 11, 1012)
Slide33The
documentation requirement applies to the conclusions listed in the
Source
Selection Decision and GAO will parse the SSD to ensure that
all conclusions
are adequately documented, or explained, on an individual
basis
.
The
protesters challenged the Navy’s award of a contract for base operating
support services to a company called J&A World Services, arguing that the SSD failed to consider technical superiority offered by the protesters and failed
to adequately explain why J&A’s lower rated proposal should receive the award over the higher rated proposals on the protesters.33
Document the Record
3
.
Case Study #2: IAP World Services, Inc.; EMCOR Government Services, B-407917.2 (July 10,2013)
Slide34GAO concluded the Navy’s SSD failed to adequately explain in the SSD
why
J&A was the best value:
“The record here does not evidence any meaningful consideration of the evaluated differences in the firms’ offers. Rather, the SSA’s selection decision merely identified certain features of J&A’s proposal and stated, without explanation, that J&A’s technical proposal compared favorably to IAP’s and EMCOR’s proposals, despite those firms’ higher technical ratings.”
34
Document the Record
3
.
Case Study #2: IAP World Services, Inc.; EMCOR Government Services, B-407917.2 (July 10,2013)
Slide3535
Documentation
requirement applies to oral
presentations
Resource
Dimensions, LLC
, B-404536 (Feb. 24, 2011):
“[W]e cannot find that the agency's documentation in regard to Resource's
Q&A session is sufficient
to allow us to review
the reasonableness of the agency's judgments.” Documentation
requirement applies to past performance evaluation Technology Concepts & Design, Inc., B-403949.2 (March 25, 2011):
“State
responds that its evaluation was based on “observed performance and user feedback” but provides no explanation or documentation of what was observed or what feedback it received … In short, State has failed to provide either contemporaneous documentation or subsequent explanation supporting its assessment of this weakness in TCDI's proposal.”
Document the Record
3
.
Slide3636
Experienced
bid protest counsel frequently assert a failure to adequately
document
the procurement record along with challenges to specific
aspects
of the evaluation. A protest to the assessment of a weakness against
the protester becomes both a challenge to the weakness itself and an assertion that the agency's failed
to document
the record by not precisely
explaining the weakness to the satisfaction of the protester.
Document the Record
3
.
Slide3737
While
not recommended as the optimal approach, it is possible to add post-protest documentation for GAO’s consideration. In the matter of, ASRC Research & Technology Solutions, LLC, B-406164 (Feb. 14, 2012), GAO explained the circumstances as follows:
“While
we generally give little or no weight to reevaluations and judgments prepared in the heat of the adversarial process, post-protest explanations that provide a detailed rationale for contemporaneous conclusions, and simply fill in previously unrecorded details, will generally be considered in our review of the rationality of selection decisions so long as those explanations are credible and consistent with the contemporaneous record
.”
Document the Record
3
.
Slide38Clarifications v. Discussions
38
Discussions
FAR 15.306(a)
Clarifications
are limited exchanges with an
offeror
for the sole purpose of eliminating minor irregularities, informalities, or apparent clerical mistakes in the proposal.
Offeror
does not have an opportunity to revise or modify its proposal.
Clarifications
FAR 15.306(d)
Discussions
are any oral or written communication between the Government and an
offeror
(other than communications conducted for the purpose of clarification) that involves information essential for determining the acceptability of a proposal, or provides the
offeror
an opportunity to revise or modify its proposal.
Discussions
Tip:
Look
at the substance of the communications to determine whether they are clarifications or discussions. Equally treat all
offerors
: if you open discussions with one, open discussions with all.
Slide39Discussions Example
“Ultimately, it is the actions of the parties that determine whether discussions have been held and not the characterization of the communications by the agency
.”
[3]
[3]
ERIE Strayer Co
., B-406131, 2012 CPD ¶ 101
at 9 (Feb
. 21, 2012
).
39
Slide4040
Discussions Example
Slide41Discussions
vs. NOT
Discussions
Additional Examples
41
Slide42Post-award: Debriefings
Authority:
10 U.S.C. § 2305(b)(5-6); FAR § 15.505-506
Purpose
:
Inform offeror of significant weakness and deficiencies and provide essential information in a post-award debriefing on the rationale for the source selection decision.
An unsuccessful offeror may request a post-award debriefing
Submit written request for a debriefing within 3 days of the date
offeror receives postaward notice.
“To the maximum extent practicable,” the contracting officer must conduct the postaward debriefing within 5 days of the date the agency receives a timely request.42
Slide43Post-award: Debriefings
43
Must Include:
The agency’s evaluation of the deficiencies and significant weaknesses in the
offeror’s
proposal;
The overall ratings of the debriefed
offeror
and the successful
offeror
;
A summary of the rationale for the award decision;
The make and model number of any commercial item(s) the successful
offeror will deliver; and
Reasonable responses to relevant questions.
Must
NOT Include:A point-by-point comparison of the debriefed
offeror’s
proposal with other
offerors’
proposal; or
Any information prohibited from disclosure under FAR §24.202 or exempt from release under the Freedom of Information Act, including the names of individuals providing reference information about an
offeror’s
past performance.
Slide44Post-award: Debriefings
[4]
See
OFPP’s February 2, 2011 “Myth-Busting” memorandum (
http://
www.whitehouse.gov/sites/default/files/omb/procurement/memo/Myth-Busting.pdf
) and OFPP’s May 7, 2012 “Myth-Busting 2” memorandum (http://www.whitehouse.gov/sites/default/files/omb/procurement/memo/myth-busting-2-addressing-misconceptions-and-further-improving-communication-during-the-acquisition-process.pdf).
44
The goal is to explain why debriefed party was unsuccessful or successful, subject to limits on disclosure.
Practice debriefings (“dry runs”); debriefings can be done in person or in writing (CO’s discretion).
Sometimes protesters file protests to gain information; Agencies are encouraged to provide as much information as possible to the debriefed
offeror
about that
offeror’s proposal. This is an opportunity to learn how to improve offers in future.[4]
Ensure there is a definite “closing” of debriefings. See Harris IT Servs. Corp., B-406067, 2012 CPD ¶ 57 (Jan. 27, 2012).
General Considerations:
Slide4545
Harris IT
Servs
. Corp.,
B-406067, 2012 CPD ¶ 57 (Jan. 27, 2012
).
Agency argued that protest was untimely because filed more than 10 days after protester received written debriefing.
Agency offered written debriefing;
offeror
requested verbal; telephone call conducted after written debriefing.
GAO:
“In our view…the above communications reflected, at a minimum, considerable ambiguity as to whether the agency’s debriefing process was continuing. Given this ambiguity, and considering that we resolve doubts regarding timeliness in favor of protesters, we find the protester’s challenges to the agency’s evaluation are timely when filed within 10 days of the agency’s conclusion of what [the unsuccessful
offeror
] refers to as its ‘oral debriefing.’”
Tip:
Treat all
offerors
fairly. When debriefings are closed, they are closed. Sometimes unsuccessful
offerors
request more information after the conclusion of debriefings. Do not reopen them, unless you want to reopen them for all
offerors
.
Post-award: Debriefings
Slide46Evaluation team
GAO will not review the composition of an acquisition team absent a showing of conflict of interest or bias.
Agric. Tech. Partners,
B-272978, 96-2 CPD ¶ 226 (Dec. 5, 1996).
Source
Selection Authority (SSA) – FAR 15.303
Approve the acquisition plan and source section strategy
Ensure that proposals are evaluated based on solicitation
Consider the recommendation of the advisory boards
Use independent judgment to select an awardee documented in the Source Selection Decision (FAR 15.308
).
46
Tip:
Use evaluators who are experts in the field and make sure that all evaluators, advisors, and the SSA can dedicate the required amount of time to the source selection effort.
Slide47Key
Takeaways
47
Follow the solicitation
1.
Treat all
o
fferors
e
qually
2.
Document the record
3.
Characterize discussions and clarifications
appropriately
4.
Make clear end to debriefings
5.
Use subject matter experts for evaluation team and ensure dedicated tim
e
6
.