debriefings, bid protests, and anichelli size/status eligibility … · 2018-08-21 · debriefings,...

© 2015 The Government Contracting Institute| www.targetgov.com | 866-579-1346 1

Presented By:

EDWARD T. DELISLE & MARIA L. PANICHELLI OF COHEN SEGLIAS PALLAS GREENHALL &FURMAN, P.C.

FOR TARGETGOV AND THE GOVERNMENT CONTRACTING INSTITUTE

Debriefings, Bid Protests, and Size/Status Eligibility Challenges: In-Depth Look at Most Important Processes in Government Contracting

http://www.targetgov.com/

11/2/2015 © 2015 The Government Contracting Institute| www.targetgov.com | 866-579-1346 2

Send questions to: [email protected]

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Your Presenters

Maria Panichelli is an associate in the Federal Contracting group at Cohen Seglias Pallas Greenhall & Furman PC. Her practice spans a variety of federal contracting and small business procurement matters. She has represented clients before numerous Federal agencies, the Government Accountability Office, and various Federal and state courts, and she has extensive experience with bid protests, REAs, CDA contract claims, terminations, and appeals. Having acquired substantial experience with the government's 8(a), VOSB/SDVOSB, WOSB/EDWOSB and HUBZone small business programs, Maria also counsels clients regarding all aspects of small business procurement.




Your Presenters

Edward DeLisle is Co-Chair of the Federal Contracting Practice Group at Cohen Seglias Pallas Greenhall & Furman PC. He concentrates his practice in the areas of federal contracting, construction law, construction litigation and small business procurement and litigation. He has drafted and negotiated construction contracts, teaming agreements and joint venture agreements for subcontractors, contractors, developers and owners. Ed also actively monitors the progress of his client’s construction projects in order to safeguard those rights and remedies to which they are entitled. He has litigated, arbitrated and mediated complex construction and procurement cases in various jurisdictions and forms throughout the area.




Class Schedule

Class begins: Section 1 Break Section 2 Break Section 3 Conclusion




The US Federal Government is the single largest purchaser of goods and services in the world. However, as any Federal contractor will tell you, the rules, regulations and laws relating to doing business with the Federal Government can be extremely confusing, and the consequences of breaking those laws can be very harsh. Nowhere is this more the case than in the context of protests. In today’s competitive marketplace, many solicitations ultimately involve bid, size or status protests. Accordingly, understanding how to assert and defend against protests can make all the difference in actually getting the contract award you are after.

In this class we cover all aspects of the protest process. You will learn how to use debriefings and bid protests as an affirmative tool when a contract was improperly awarded to someone else. You will also learn how to defend against, or even avoid, bid protests filed against you by frustrated competitors. Lastly, you’ll learn about SBA/VA size and status protests, which address challenges to the size and eligibility of Small, 8(a), VO/SDVOSB, ED/WOSB and HUBZone businesses.

Today’s Agenda




1. Protests in Context - an Overview of the Federal Contracting Procurement Process

2. The Types of Protests 3. Using Bid Protests as an Affirmative Tool 4. Defending Against Bid Protests 5. Size/Status Protests and Size/Status Eligibility Examinations

Today’s Agenda


11/2/2015 9 © 2015 The Government Contracting Institute | www.TargetGov.com | 866-579-1346 9

Protests in Context The Procurement Process:

A Brief Overview




Meet the FAR: The Federal Acquisition Regulation (“FAR”) is established for the

codification and publication of uniform policies and procedures for acquisition by all executive agencies 48 CFR – Chapter 1

Supplemental Agency Regs Examples: • Defense Federal Acquisition Regulation Supplement (DFARS) • Army Federal Acquisition Regulation Supplement (AFARS) • Engineer Federal Acquisition Regulation Supplement (EFARS) http://farsite.hill.af.mil http://www.acquisition.gov/far/index.html

What Law Governs the Bidding and Award Process?




Key Considerations: What Agency (different procedures)?

What type of Contract (Set Aside? IDIQ)?

What type of Procurement (different manner of evaluating

bids/offers: Sealed Bidding? Contracting by Negotiation?)

How Does the Bidding and Award Process Work?




FAR Part 14 – Sealed Bidding Invitation for Bids (“IFB”):

Award is Made to the Lowest Responsive and Responsible Bidder

Sealed Bidding




What is “Responsive?” Only “responsive” bids can be considered for award. To be responsive, a bid must comply with all of the requirements of

the invitation to bid; price, quality, quantity, delivery… DON’T GET CREATIVE or QUESTION THESE REQUIREMENTS.

Bid invitations often come with other requirements (for example, “bidders shall attend a pre-bid conference”).

Noncompliance can lead to rejection by the contracting authority or a protest by another bidder on grounds of responsiveness

Sealed Bidding




Sealed Bidding

What is “Responsible?” Contractor, supplier, or vendor, qualified on the basis that it has adequate

financial resources to perform a contract, is able to comply with the associated legal or regulatory requirements, is able to deliver according to the contract schedule, has a history of satisfactory performance, has good reputation regarding integrity, has or can obtain necessary data, equipment, and facilities, and is otherwise eligible and qualified to receive award if its bid is chosen

Small Business – SBA Certificate of Competency FAR 19.601; 13 CFR 125.5




Sealed Bidding

Common Issues in Sealed Bidding: Restrictions on Competition “Bid it as You See it” Errors and Omissions Mistake in Bid Timeliness (not exclusive to Sealed Bidding)




Contracting By Negotiation

FAR Part 15 – Contracting by Negotiation Request for Proposals (“RFP”):

Award is made to the offeror who presents the “Best Value”

• Tradeoff Process

• Lowest Price Technically Acceptable (“LPTA”)




Evaluation Factors

The award decision is based on evaluation factors and significant sub factors that are tailored to the acquisition

Evaluation factors and significant sub factors must: 1. Represent the key areas of importance and emphasis

to be considered in the source selection decision 2. Support meaningful comparison and discrimination

between and among competing proposals




Evaluation Factors

Typical Evaluation Factors: Management Organization Proposed Technical Approach/Solutions Proposed Schedule Technical Experience and Expertise Key Personnel Qualifications Past Performance Experience with similar types of work Small Business Subcontracting Plan Price




Evaluation Factors

FAR 15.305 Proposal evaluation is an assessment of the proposal and the offeror’s

ability to perform the prospective contract successfully An agency shall evaluate competitive proposals and then assess their

relative qualities solely on the factors and subfactors specified in the solicitation

Evaluations may be conducted using any rating method or combination of methods, including color or adjectival ratings, numerical weights, and ordinal rankings

The relative strengths, deficiencies, significant weaknesses, and risks supporting proposal evaluation shall be documented in the contract file




FAR 15.305 Cost or Price Evaluation Past Performance Evaluation Technical Evaluation Cost Information Small Business Subcontracting Evaluation

Evaluation Factors




FAR 15.305 Past Performance Evaluation: An indicator of an offeror’s ability to perform the contract

successfully (separate from the responsibility determination) The solicitation shall describe the approach for evaluating

past performance Subcontractors’ (Teaming Partners’)/JV Past Performance?

Evaluation Factors




Opening Negotiations

Clarifications and Award Without Discussions Competitive Range Negotiations are “Discussions” With All the

Offerors Within the Competitive Range




Limits on Negotiations

Government personnel may not engage in conduct that: Favors one offeror over another Reveals an offeror’s technical solution, including unique technology,

innovative and unique uses of commercial items, or any information that would compromise an offeror’s intellectual property to another offeror

Reveals an offeror's price without that offeror’s permission Reveals the names of individuals providing reference information about

an offeror’s past performance Knowingly furnishes source selection information




Final Proposal Revision

The contracting officer may request or allow proposal revisions to clarify and document understandings reached during negotiations

At the conclusion of discussions, each offeror still in the

competitive range shall be given an opportunity to submit a final proposal revision

The contracting officer is required to establish a common cut-off

date only for receipt of final proposal revisions




Source Selection Decision

The source selection authority’s (“SSA”) decision shall be based on a comparative assessment of proposals against all source selection criteria in the solicitation

While the SSA may use reports and analyses prepared by others, the source selection decision shall represent the SSA’s independent judgment

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




Losing Proposals




Unsuccessful Offeror Notice

Pre-Award Notice (FAR 15.503(a)(1)): Preaward notices of exclusion from competitive range -

The contracting officer shall notify offerors promptly in writing when their proposals are excluded from the competitive range or otherwise eliminated from the competition. The notice shall state the basis for the determination and that a proposal revision will not be considered.




Pre-Award Notice (FAR 15.503(a)(2)): In Small Business, HUBZone, VOSB/SDVOSB or

WOSB/EDWOSB procurement, Contracting Officer must notify each offeror in writing PRIOR to award

Notice must state: a) Name and Address of the Apparently Successful Offeror b) That the Government Will Not Consider Subsequent Revisions of the

Offeror’s Proposal c) That No Response is Required Unless a Basis Exists to Challenge

the Size Status or Small Business Status of the Apparently Successful Offeror (Size/Eligibility Protests to be Discussed Later)





Post-Award Notice (FAR 15.503(b)): Within 3 days after award, each unsuccessful offeror

shall be notified of: • The number of proposals received • Name and address of each awardee • The award price, including unit prices quantities • In general terms, the reasons why the offeror’s

proposal was not accepted




Types of Protests And

Size/Status Challenges




Types of Protests

Several Varieties of “Protest” that Small Businesses Must Be Aware Of: Bid Protest Size Protest ( Size Determination) Status Protest ( Status/Eligibility Investigation)

* There are also NAICS code appeals*




Bid Protest:

Another contractor’s challenge of the procedures or process used during the bidding, source selection, evaluation and contract award process. Relates to a particular contract.

Types of Protests




Size Protest:

Another contractor’s challenge concerning the size of a small business in relation to a specific contract ( can sometimes lead to Size Determination).

Types of Protests




Status Protest:

Another contractor’s challenge concerning the status of a small business in relation to a specific contract ( can lead Status/Eligibility Investigation).

Types of Protests




Other Types of Challenges

Size Determination: SBA’s investigation relating to a concern’s size. Not specific to one contract. Can be initiated internally by the SBA or based on outside information. Eligibility Examination: SBA’s or VA’s Investigation relating to a concern’s status. Not specific to one contract. Can be initiated internally by the Agency or based on outside information.



Using Bid Protests as an Affirmative Tool




The Protest Process

Solicitation (Pre-Award Protests)

Source Selection

(Small Business Set Asides – Notice of Proposed Award)

(Small Business Size or Status Protests)

Notice to Unsuccessful Offerors and Award

Debriefings

Initial Filings (Letter/Complaint and, if Applicable, Injunctive Relief Package)

Intervention

Motions to Dismiss (Jurisdictional and Standing Issues) and Challenges to Propriety of Injunctive Relief

Discovery – Agency/Administrative Record

Comments to Agency/Administrative Record and (Cross) MJOAR

Decision

EAJA?




Pre-Award Protests: Why Protest? Common Protest Issues

Pre-Award Protest Issues:

Patent Error/Unclear or Ambiguous Improper Exclusion of Required Provisions/Inclusion of

Inapplicable Provisions Unduly Restrictive of Competition Improper Bundling Unreasonable Evaluation Method(s) Small Business Issues

• Hierarchy of Set-Aside Programs • Rule of Two (Increasing Discretion re: GSA & FSS?)




Post-Award Protests: Debriefings

When Is a Debriefing Required? Sealed Bidding v. Contracting By Negotiation




When to Request a Debriefing? FAR 15.505 (Pre-Award):

Timely written request within 3 days after receipt of the notice of exclusion from the competition

At the offeror’s request, this debriefing may be delayed until after award





When to Request a Debriefing? FAR 15.506 (Post-Award):

Timely written request within 3 days after the date on which that offeror has received notification of contract award





Untimely requests do not entitle you to a debriefing No exceptions, but there is some discretion; you might get one anyway, if the agency feels like it BUT

Government accommodation of an untimely request does not extend the deadlines for filing protests!!





When will the Debriefing Occur?

To the maximum extent practicable, the debriefing should occur within 5 days after receipt of the written request

Offerors that requested a post award debriefing in lieu of a preaward debriefing, or whose debriefing was delayed for compelling reasons beyond contract award, also should be debriefed within this time period

Quick turnaround required - So call your lawyer sooner than later if you believe you have a viable protest!





What is the Purpose of a Debriefing:

What did the agency think were the strengths and weaknesses in my proposal?

What was the Price and Technical Rating of my offer and the awardee’s offer?

How did I rank? What was the Agency thinking? Care to share your

rationale? Were the evaluation scheme and applicable regulations

followed?





How are Debriefings Done? Debriefings may be done orally, in writing, or by any

other method acceptable to the contracting officer Letter v. Telephonic v. In Person Agency preference, case-by-case basis Advantages and Disadvantages Opportunity to Ask Questions/Impact on Deadlines





Who Should Attend?

The contracting officer should normally chair any debriefing session held

Individuals who conducted the evaluations shall provide support

Counsel can - and in some cases, should – be present -- It’s a balancing test, on a case-by-case basis





What is Covered in a Debriefing? (FAR 15.506)

The Government’s evaluation of the significant weaknesses or deficiencies in the offeror’s proposal, if applicable

The overall evaluated cost or price (including unit prices) and technical rating, if applicable, of the successful offeror and the debriefed offeror, and past performance information on the debriefed offeror

The overall ranking of all offerors, when any rankings was developed by the agency during the source selection (RFP v. IFB)

A summary of the rationale for award For acquisitions of commercial items, the make and model of the item to be delivered

by the successful offeror Reasonable responses to relevant questions about whether source selection

procedures contained in the solicitation, applicable regulations, and other applicable authorities were followed





Limitations on Debriefing/What is NOT Covered:

Debriefing will not include a point-by point comparison of the debriefed offeror’s proposal with those of other offerors





Limitations on Debriefing/What is NOT Covered:

Moreover, the debriefing shall not reveal any information prohibited from disclosure by 24.202 or exempt from release under the Freedom of Information Act (5 U.S.C. 552) including:

• Trade Secrets • Privileged or confidential manufacturing processes and techniques • Commercial and financial information that is privileged or confidential,

including cost breakdowns, profit, indirect cost rates, and similar information

• The names of individuals providing reference information about an offeror’s past performance





Who/What do I bring? What do I ask? Can I record the meeting/take notes?

These are loaded questions that will take longer to answer then the time allotted . . . Counsel is always helpful in outlining your options. But, in short, some advice:

Be professional and polite – nobody likes a sore loser and you are far less likely to elicit information if you are combative

Avoid using the word “protest” and definitely avoid threats Listen! You might learn something useful for the next time – (OR information

critical for a valid bid protest!) That said, be aware of your right to ask questions; don’t be afraid to ask them! A list of debriefing items to which you are entitled under the FAR 15-506(d)





How to Prepare for Your Debriefing: Review the RFP, and familiarize yourself with the RFP’s evaluation

criteria, and the relative importance/rankings of those evaluation criteria

Review the notice to unsuccessful offerors – does it raise certain questions?

Review the applicable debriefing regulation – be aware of what should and should not be covered

Prepare a chart Prepare a reasonable number of questions in advance (see next slide) Conduct a dry run





Plan Questions In Advance. Counsel Can Help You Prepare. Some examples:

• Please identify the strengths, weaknesses, or deficiencies in our proposal for each evaluation factor and sub factor. • What were the most significant weaknesses? • Were there any solicitation requirements that we failed to address? If so, what were they? • Were any significant deficiencies identified by the Government during discussions not adequately addressed in our

response to your Evaluation • Were there any specific considerations that precluded us from being selected as the awardee? If so, what were those

considerations? • What, if anything, did the you want that was missing from our proposal? • Please explain how past performance was evaluated. What was our rating? How was that rating applied to the source

selection process? • Was experience evaluated? If so, what was our rating and how was that information used in the source selection

process? • Please explain the procedure for the evaluation of risk? What risks were identified in our proposal? How did they

impact the rating of our proposal? (From the Post-Award Debriefing Guide by Robert Knauer, CPPO CPCM, made available for public use)





What am I Listening For? Post-Award Protest Issues: Evaluation Issues:

• Improper Application of Provisions or Failure to Apply Required Provisions (be wary of timeliness defenses!)

• Agency error in applying evaluation criteria • Agency misinterpretation of proposal

*Past Performance and Technical Experience and Expertise and Personnel Qualifications are most the common areas for disagreement*

Inadequate, Misleading or “Uneven” discussions with Offerors Insufficient Documentation Flaws in “Trade-Off” Process

Post-Award Protests: Debriefings Common Protest Issues




Where do we go from here:

Ground for Protest? Request a clarification post-debriefing? Assessment of evaluation – what did we learn

for the future?





“Best Practices” Tip: Always request a debriefing, even if you won. Benefits include:

Valuable insight into the procurement process

Relationship building with the agency

Valuable insight about the strengths and weaknesses of your competitors




End Section 1 Break

Debriefings, Bid Protests, and Size/Eligibility Challenges: In-Depth Look at Most Important Processes in Government Contracting



Start Section 2




The Who, What, When, Where, and Why of Filing a Protest:

Not necessarily in that order…




Bid Protests: Why Protest?

Common Post-Award Protest Issues: Evaluation Issues

• Improper Application of Provisions or Failure to Apply Required Provisions (be wary of timeliness defenses!)

• Agency error in applying evaluation criteria

• Agency misinterpretation of proposal Inadequate, Misleading or “Uneven”

discussions with Offerors Insufficient Documentation Flaws in “Trade-Off” Process

Common Pre-Award Protest Issues: Patent Error/Unclear or Ambiguous (Bid it

as you see it!) Improper Exclusion of Required

Provisions/Inclusion of Inapplicable Provisions

Unduly Restrictive Improper Bundling Unreasonable Evaluation Method(s) Small Business Issues

• Hierarchy of Set-Aside Programs • Rule of Two (Increasing Discretion re:

GSA & FSS?)




What About IFBs? How Do you Protest Price?

Bid Protests: Why Protest?




Bid Protests: Why Protest? SHOULD I Protest?




Keep in mind that these statistics do not account for: Corrective Action Settlements ADR Or Jurisdictional Issues Untimely Protests Technically Deficient Protests





Some “Sustained” Favorites: Offeror treated unequally Use of unstated evaluation criteria Evaluation inconsistent with solicitation Errors conducting discussions Inadequate documentation





Key Considerations: Cost Likelihood of Success

• Discretion v. Clear Error • Not all protests are created equal

Leverage • Corrective Action • The Power of the Stay

Practical Concerns: How might this affect relationship with the client/agency?





Bid Protests: Who Can File a Bid Protest?

An “Interested Party” • Disappointed Offeror • Prospective Offeror • Seems like an easy issue, but can get very

complicated With “direct economic interest”

• Were you next in line? • Was the evaluation so flawed as to allow

someone other than the next in line to protest?




Bid Protests: Where Can You File a Bid Protest?

Three Main Options for Straight Bid Protests:

Contracting Officer (Agency) U.S. Government Accountability Office (“GAO”) U.S. Court of Federal Claims (“COFC”)

Less Common: FAA’s Office of Dispute Resolution for Acquistions

(“ODRA”)




Bid Protests: Where SHOULD You File YOUR Bid Protest?

Some Considerations: Size of Contract/Dispute Amount Cost of Litigation Complexity of Issues Objectivity (Agency Counsel v. DOJ) Stay/Injunctive Relief Jurisdictional Concerns (increasingly important?) Coordination with similarly situated protestors (GAO/COFC) Filing Methods (email, fax, hand-delivery) – can come into play with

strict timeliness requirements (Attorney Preference – Educate yourself)




Bid Protests: What to File when Initiating a Bid Protest?

Filing requirements regarding format depend on protest forum:

Agency, GAO, SBA and VA: usually a letter is sufficient

COFC • Formal (verified) complaint • And, if seeking a stay, injunctive relief packet

(PI, TRO, MOL, Affidavits, Etc.)




Bid Protests: What to Include in Your Bid Protest?

Specificity is key! Specific allegations regarding what, exactly, you

allege was a procurement error You need more than speculation (tough balance

when all you have is the debriefing…)




Injunctive Relief? Whether or not to seek injunctive relief can be a critical consideration in most contractors’ minds is whether the protest will suspend, or “stay,” the awardee’s contract performance pending the protest

How long will the protest take?

What are the consequences of award/NTP?

Use as leverage?

If you can’t or don’t want to file in time for a stay, can you meet the injunctive relief requirements of COFC?





Injunctive Relief:

Likelihood of success on the merits (mini argument/preview)

Irreparable Harm (purely monetary is usually not enough)

Public Interest Balance of Harms/Weighing of the Hardships





Bid Protests: WHEN to File a Bid Protest?

Perhaps the Most Important Question in All of Government Contracting!

Deadlines Vary Depending on Protest Forum (GAO, COFC, SBA, VA) and Type of Protest (Pre- or Post- Award)

Do you want a Stay?




“Know or should have known” the basis of your protest:

Solicitation / Pre-Award Protests • Patent v. Latent error(s)?

Award / Post-Award Protests





Remember the Protest Process:

Solicitation (Pre-Award Protests)

Source Selection

(Small Business Set Asides – Notice of Proposed Award)

(Small Business Size or Status Protests)

Notice to Unsuccessful Offerors and Award

Debriefings





Forum: Agency GAO COFC Type of Procurement/Protest:

Jurisdictional Timeline Stay Jurisdictional Timeline Stay Jurisdictional Timeline Stay

FAR Part 15 (Contracting by Negotiation) and FAR Part 12

- Pre-Award Protest Pre-award protests based on alleged apparent improprieties in a solicitation must be filed before bid opening or

the closing date for receipt of

proposals. FAR 33.103(e).

Upon receipt of a pre-award protest, the Agency must

stay the award. FAR 33.103 (f)(1).

A pre-award protest must be filed prior to the time set for

submission of initial proposals. 4 C.F.R. §

21.2(a)(1).

A pre-award offeror eliminated from competitive

range must request a debriefing within 3 days after receiving notice of exclusion

to obtain a “required debriefing.” FAR

15.505(a)(1). The protest must be filed within 10 days of the debriefing date offered to the protester. 4 C.F.R. §

21.2(a)(2).

Upon notice of a pre-award protest at GAO, the

Agency must delay the award. FAR 33.104(b)(1).

Pre-award protests have no specific time limits, but

errors apparent on face of a solicitation must be protested

prior to the time set for receipt of

proposals

No automatic stay applies; instead, the protester must meet the standards

for a preliminary injunction: 1) it is likely to succeed on the merits of the

protest; 2) it will suffer - Post-Award Protest Post-award protests

must be filed no later than 10 days after the basis of protest is known or should have been known, whichever is earlier. FAR 33.103(e).

For post-award protests, the stay applies to protests filed 10 days after contract award or within 5 days after a debriefing date offered to the protester under a timely debriefing request in accordance with 15.505, 15.506 or 52.212-1(l); FAR 33.103(f)(3).

A post-award protest must be filed within 10 days of the debriefing date offered to protester. 4 C.F.R. § 21.2(a)(2). In all other cases, the offeror must file not later than 10 days from the date the offeror knew or should have known of the grounds for the protest.

For post-award protests, the automatic CICA stay applies if the protest is filed within 5 days of a “requested and required” debriefing under FAR 15.506, or within 10 days of contract award (FAR 33.104(c)(1)) provided that GAO notifies the agency of the protest within those time frames.

Post-award protests have no specific time limits, but in some cases, serious delay in raising a claim may impact the equities in determining whether an injunction should issue or lead to the imposition of laches

irreparable harm unless the injunction is granted; 3) the preliminary

injunction will not harm the public interest; and (4) the balance of

hardships tips in the protester’s favor.






Jurisdictional Timeline

Stay Jurisdictional Timeline Stay Jurisdictional Timeline Stay

FAR Part 8 - Pre-Award Protest Pre-award protests

based on alleged apparent

improprieties in a solicitation must be

filed before bid opening or the closing date for

receipt of quotations. FAR 33.103(e

Upon receipt of a pre-award protest, the Agency must stay the award. FAR

33.103(f)(1).

A pre-award protest must be filed prior to the time set

for submission of initial quotations. 4 C.F.R. §

21.2(a) (1).

Upon notice of a pre-award protest at GAO, the Agency must delay

the award. FAR 33.104(b)(1).

Pre-award protests have no specific time limits, but errors

apparent on the face of a solicitation must be protested

prior to the closing date for receipt of quotations

No automatic stay applies; instead, the protester must meet the standards for a preliminary

injunction: 1) it is likely to succeed on the merits of the protest; 2) it will

suffer - Post-Award Protest Post-award protests


For post-award protests, the stay applies to protests filed within 10 days of contract award (debriefings are not “required”).

A post-award protest must be filed not later than 10 days after the basis of protest is known or should have been known (debriefings not “required” per FAR 8.405-2(d)). 4 C.F.R. § 21.2(a)(2).

For post-award protests, the automatic CICA stay applies if the protest is filed within 10 days of award and the agency receives notice of a protest within timeframe FAR 33.104(c)(1).

Post-award protests have no specific time limits, but in some cases, a serious delay in raising a claim may impact the equities in determining whether an injunction should issue or lead to the imposition of laches

irreparable harm unless the injunction is granted; 3) the

preliminary injunction will not harm the public interest; and (4) the balance of hardships tips in the

protester’s favor.






Jurisdictional Timeline

Stay Jurisdictional Timeline Stay Jurisdictional Timeline Stay

Task Order/IDIQ - Pre-Award Protest Pre-award protests

based on alleged apparent

improprieties in a solicitation must be

filed before bid opening or the closing date for

receipt of proposals. FAR 33.103(e).

Upon receipt of a pre-award protest, the Agency must stay the award. FAR

33.103(f)(1).

A pre-award protest must be filed prior to the time and date for submission of initial

proposals. 4 C.F.R. § 21.2(a)(1).

Upon notice of a pre-award protest at GAO, the Agency must delay

the award. FAR 33.104(b)(1).

Pre-award protests have no specific time limits, but errors

apparent on face of a solicitation must be protested

prior to the closing date for receipt of proposals

No automatic stay applies; instead, the protester must meet the standards for a preliminary

injunction: 1) it is likely to succeed on the merits of the protest; 2) it will

suffer - Post-Award Protest Post-award protests


For post-award protests, the stay applies to protests filed 10 days after contract award or within 5 days after a debriefing date offered to the protester under a timely debriefing request in accordance with FAR 15.505 or 15.506. FAR 33.103(f)(3).

A post-award protest must be filed within 10 days of the debriefing date offered to protester (debriefings required for task and delivery orders exceeding $5 million. FAR 16.505(b)(4)). 4 C.F.R. § 21.2(a)(2). In all other cases, the offeror must file not later than 10 days from the date the offeror knew or should have known of the grounds for the protest.

For post-award protests, the automatic CICA stay applies if the protest is filed within 5 days of “requested and required” debriefing under FAR 15.506; or within 10 days of contract award

Post-award protests have no specific time limits, but in some cases, serious delay in raising a claim may impact the equities in determining whether an injunction should issue or lead to the imposition of laches

irreparable harm unless the injunction is granted; 3) the

preliminary injunction will not harm the public interest; and (4) the balance of hardships tips in the

protester’s favor.

** Special Considerations relating to MATOCs!!!!**





(Charts are for GENERAL GUIDANCE only)

The Takeaway Lesson?

Bid Protest Timelines are complicated and nuanced and firm and strict

You will NOT be granted ANY leeway if you are late!

Best practice advice? Call your attorney as soon as you receive the Notice of

Proposed Award/ Award!





Bid Protests: How to File Your Protest?

Again, depends on forum:

Email

Letter

Hand Delivery



Defending Against Bid Protests





Unfortunately, not much you can do to avoid these, as they usually have to do with the applicable agency’s actions rather than the winning contractor’s actions or qualifications

That said, it helps to be aware of the commonly protested issues so that you can be aware of potential issues with agency conduct

Also, while substantive defenses depend entirely on the nature of agency conduct, there are procedural defenses that you can be sure to explore




Remember the Protest Process:

Initial Filings (Letter/Complaint and, if Applicable, Injunctive Relief Package)

Intervention Motions to Dismiss (Jurisdictional and Standing Issues)

and Challenges to Propriety of Injunctive Relief Discovery – Agency/Administrative Record Comments to Agency/Administrative Record and (Cross) MJOA Decision EAJA?





Intervention!!!





Jurisdiction – Tucker Act:

Vests Court of Federal Claims with jurisdiction to render judgment on an action by an interested party objecting to a solicitation by a Federal agency for bids or proposals for a proposed contract or to a proposed award or the award of a contract or any alleged violation of statute or regulation in connection with a procurement or a proposed procurement. Both the United States Court of Federal Claims and the district courts of the United States shall have jurisdiction to entertain such an action without regard to whether suit is instituted before or after the contract is awarded.





Jurisdictional Issues/Questions: • Task Orders? • Options? • Out of Scope Modifications?

Recent Case Law Seems to Show a Shift AWAY From Finding Jurisdiction





Standing:

Protestor must be an “Interested Party” • Disappointed Offeror • Prospective Offeror

Protestor must have a “Direct Economic Interest” • Was protestor next in line? • Was the evaluation so flawed as to allow someone

other than the next in line to protest?





Challenges to Injunctive Relief / Leverage: Likelihood of success on the merits (mini

argument/preview) Irreparable Harm (purely monetary is usually not

enough) Public Interest Balance of Harms/Weighing of the Hardships





Typical Timelines: • 30 days at Agency Level • 100 days for GAO • Several Months at COFC, Subject to Injunctive Relief Issues or Special

Circumstances Typical Outcomes:

• Corrective Action or Settlement (Doesn’t always solve everything) • Sustain the Protest(Does not necessarily mean protestor gets award!) • Dismissal (Jurisdiction/Standing) • Injunctive Relief (denial of injunctive relief is not necessarily an overall

loss) • Attorneys Fees? (in limited cases)




Size & Status Protests/ Size & Eligibility Investigations




Size and Status Protests: A Primer

Offensive Tool, and Defensive Issue

Contractor v. Contractor – Competitor challenging eligibility, usually because of size (including affiliation), ownership or control Corrective Action or Settlement (Doesn’t always solve everything)

“Interested Party” may protest (Broader definition)

Interested party seeking to protest both the size and the status (i.e. ownership and control) may have to file two separate protests

Size Protests must be brought pursuant to 13 CFR part 121

Protests challenging the eligibility issues brought under program-specific regulations




Size and Status Protests: Why Protest?

Small Business Protest Issues: Size

• Affiliation

Unmet Eligibility Criteria

“Unconditional Ownership”

“Unconditional Control”

Other?



Size & Affiliation




SBA Size Standards: Can Be Based on Annual Gross Receipts or Number of

Employees Represents the largest size that a business may be to remain

classified as “small” Used by SBA to Determine the Size of a Concern Standards Vary By Industry – Based on North American

Industrial Classification Codes (“NAICS Codes”)

Small Business Programs: What is “Small?”




North American Industry Classification System (“NAICS”) Codes

Procurement/Solicitation Specific Identifies Each Solicitation by Industry





Codes are broken down by Industry:





And then by Sub-Industry:





Back to SBA Size Standards: Once you know the applicable NAICS code, check the corresponding SBA Size Standard on the SBA’s Website.



https://www.sba.gov/sites/default/files/files/Size_Standards_Table.pdf

https://www.sba.gov/sites/default/files/files/Size_Standards_Table.pdf



Concerns are “Affiliates” when one controls or has the power to control the other, or a third party or parties controls or has the power to control both. (13 C.F.R. 121.103)

• General Affiliation – A large concern is too closely related to, or intertwined with, the small business on a large scale basis

• “Ostensible Subcontractor” – A large business has excessive “control” or the power to control a small business concern on a particular procurement

Small Business Programs: What is “Small?” - Affiliation




Common Affiliation Issues:

Two Types: Individual Contract v. General Affiliation

Individual Contract/Ostensible Subcontractor

• % of Work Requirements • Control on site • Other indicia of non-control





Common Affiliation Issues:

Two Types: Individual Contract v. General Affiliation

General affiliation: • Shared Space • Shared Employees • Past Employee Relationship • Familial Relationship • Frequent Subcontracting • Financial Reliance

‐ Guarantor? LOC? Bonding?




End Section 2 Break




Start Section 3




Unmet Eligibility Criteria




What is an 8(a) Business?

Small Business 51% unconditionally owned and unconditionally controlled by one or more: Socially disadvantaged AND Economically disadvantaged

individuals Who are of good character Citizens of and residing in the United

States Who demonstrate potential for

success

Small Business Eligibility: 8(a)




Who is Socially Disadvantaged?

Rebuttable Presumption of Social Disadvantage: • Black Americans • Hispanic Americans • Native Americans • Asian Pacific Americans • Subcontinent Asian Americans • Members of other groups designated from time

to time by SBA An individual must demonstrate that he or she

has held himself or herself out, and is currently identified by others, as a member of a designated group

The presumption of social disadvantage may be overcome with credible evidence to the contrary





Who is Socially Disadvantaged?

An individual not a member of one of the groups before may establish individual social disadvantage

Evidence of individual social disadvantage must include the following elements: • One objective distinguishing feature (race,

ethnic origin, gender, physical handicap) • Personal experiences of substantial and chronic

social disadvantage • Negative impact on entry into or advancement

in the business world because of the disadvantage. (Education, employment and business history)





Who is Economically Disadvantaged?

Economically disadvantaged individuals are socially disadvantaged individuals whose ability to compete in the free enterprise system has been impaired due to diminished capital and credit opportunities as compared to others in the same or similar line of business who are not socially disadvantaged.





Who is Economically Disadvantaged?

Net Worth (<$250,000/$750,000) excluding the ownership interest in the 8(a) concern and the equity in the primary personal residence

Personal income for the past three years (<$250,000/$350,000 3-year average), rebuttable presumption

Fair market value of all assets (<$4mm/$6mm)





What is Potential for Success?

The applicant concern must possess reasonable prospects for success in competing in the private sector if admitted to the 8(a) BD program. To do so, it must be in business in its primary industry classification for at least two full years immediately prior to the date of its 8(a) BD application, unless a waiver for this requirement is granted.





What is Good Character?

Case by Case, totality of circumstances analysis: • Criminal conduct • Violations of any of SBA's

regulations • Debarred or suspended • Lacks Business Integrity • Incarceration • Dishonest behavior





What is a “HUBZone?”

HUBZone means a historically underutilized business zone, which is an area located within one or more:

1. Qualified census tracts 2. Qualified non-metropolitan

counties 3. Lands within the external

boundaries of an Indian reservation

4. Qualified base closure area 5. Redesignated area

Small Business Eligibility: HUBZone SBCs




What is a “HUBZone” SBC?

Small Business 51% unconditionally owned and unconditionally controlled by one or more by either:

• Indian Tribal Governments (or companies owned thereby) or

• US Citizens Principal office located in a HUBZone At least 35% of its employees reside in a

HUBZone / within any Indian reservation

*Different rules for Indian Tribal Governments than other citizens

Small Business Eligibility: HUBZone SBCs




Understand the Lingo:

Veteran Owned Small Business (“VOSB”)

Service-Disabled Veteran Owned Small Business (“SDVOSB”)

Small Business Eligibility: VOSB/SDVOSB




Two Distinct Programs:

1. VA’s VOSB/SDVOSB Program (VA Contracts)

2. SBA’s SDVOSB Program (All other Agency Contracts)

Small Business Eligibility: VOSB/SDVOSB




What is a SDVOSB (SDVO SBC)? Small Business 51% unconditionally owned and

unconditionally controlled by one or more

Service-Disabled Veteran

Small Business Eligibility: VOSB/SDVOSB SBA SDVOSB Program (SDVO SBC)




What is a VOSB? Small Business 51% unconditionally owned and

unconditionally controlled by one or more Veteran

What is a SDVOSB? Small business 51% unconditionally owned and

unconditionally controlled by one or more Service-Disabled Veteran

Small Business Eligibility: VOSB/SDVOSB VA VOSB/SDVOSB Program (“VetBiz” & “VIP”)




What is a WOSB? Small Business 51% unconditionally owned and

unconditionally controlled by one or more Women

What is an EDVOSB? Small business 51% unconditionally owned and

unconditionally controlled by one or more Economically Disadvantaged Women

*NAICS Codes for Industries where Woman are Historically Under-Represented

Small Business Eligibility: WOSB/EDWOSB




What does “Economically Disadvantaged” really mean? A woman is economically disadvantaged if she can

demonstrate that her ability to compete in the free enterprise system has been impaired due to diminished capital and credit opportunities as compared to others in the same or similar line of business





What does “Economically Disadvantaged” really mean?

Factors to be considered: Personal Net Worth must be less than $750,000 – excluding her interest in

the concern, her equity interest in her primary residence and funds invested in a retirement account that are unavailable until retirement age without a significant penalty

Fair Market value of all assets including firm and equity interests in personal residence may not exceed 6 million

Salary – Cannot exceed $350,000 / year average over the last three years preceding certification or there is presumption of no disadvantage

Rebuttable Presumption – May show that high income level was unusual, losses were suffered, or that income was not otherwise indicative





What does “Economically Disadvantaged” really mean?

They will consider spouses’ financial situation as well – although the SBA does not take into consideration community property laws when doing overall analysis

• Community Property States include Arizona, California, Idaho, Louisiana, Nevada, New Mexico, Texas, Washington, and Wisconsin. Puerto Rico is a Community Property Territory

• May consider spousal financial condition when determining women’s access to credit and capital

• Will consider spousal financial condition if the spouse has a role in the business, or has a similar business

Be wary of Transfers!!!




Unconditional Ownership & Unconditional Control




Small Business Programs: Common Pitfalls - Ownership

Remember, for each program, the key is: “Unconditional Ownership”

“Unconditional Control”




Common Ownership Issues: Indirect Ownership

• No Holding Companies • No Employee Stock Ownership Plan (ESOP) • Revocable Trust is OK sometimes

Specifics are different based on corporate structure Restrictions on ownership / transfer





Common Ownership Issues:

Corporate Governance Provisions Transfer Restrictions

• Rights of First Refusal ‐ Guidance from the VA cases

• Transfer upon Incapacity • Transfer upon Bankruptcy • (Any Involuntary Divestment)





Common Ownership Issues:

Corporate Governance Provisions Voting Restrictions - i.e Quorum or Supermajority Provisions Definition or Number of

“Managers” or “Members” Positions of Authority Given to Others





Small Business Programs: Common Pitfalls - Control

Remember: “Unconditional Control” Two Components

1. Long-Term Decision Making and 2. Day-to-Day Management and Administration of

Business Operations Watch out for negative control issues (more on this

later)




Additional Considerations: What’s in a Title? Turns out, a lot. Position matters -- The requisite individual should

have the highest officer position in the concern





Additional Considerations: Experience matters, too. The requisite individual must have managerial experience of the

extent and complexity needed to run the concern However, they need not have the technical expertise or possess

the required license to be found to control the concern if they can demonstrate that they have ultimate managerial and supervisory control over those who possess the required licenses or technical expertise





Common Control Issues:

Remember what we learned! Position, title and experience matter. Going to run into problems regarding:

Positions of Authority Given to Others Definitions/Number of “Managers” or “Members” – Sharing is Not a Positive Required Individual Does Not Have Highest Title Required Individual Not Experienced Enough Licenses





Common Control Issues: “Remote” Control Full time Job(s) Economic Control/ Duress *Control Considerations are Often Closely Related to Affiliation Analysis




Size and Status Protest Process




Size and Status Protests: Who Can File A Size Protest?

SBA: 13 CFR 121.1001 Small, 8(a): Any offeror whom the contracting officer has not eliminated for reasons

unrelated to size HUBZone:

• Any concern that submits an offer for a specific HUBZone set-aside procurement that the contracting officer has not eliminated for reasons unrelated to size

• Any Concern that submitted an offer in full and open competition and its opportunity for award will be affected by a price evaluation preference given a qualified HUBZone

SDVO SBC: Any concern that submits an offer for a specific service-disabled veteran-owned small business set-aside contract

WOSB/EDWOSB: Any concern that submits an offer for a specific requirement set aside for WOSBs or WOSBs owned by one or more women who are economically disadvantaged




8(a): Any other concern which submitted an offer for that requirement, unless the contracting officer has found the concern to be non-responsive or outside the competitive range, or SBA has previously found the protesting concern to be ineligible for the requirement at issue (13 CFR 124.1007)

HUBZone: An offeror that is an interested party (13 CFR 126.800; FAR 19.306)

SDVO SBC: An offeror that is an interested party (13 CFR 125.24; FAR 19.307)

WOSB/EDWOSB: An offeror that is an interested party (13 CFR 127.600; FAR 19.308)

Size and Status Protests: Who Can File A Status Protest?




Interested Party means any concern that submits an offer for a specific set-aside award, OR any concern that submitted an offer in full and open competition and will be effected by advantages given the small business.

Size and Status Protests: Who Can File A Status Protest?




Size and Status Protests: Where Do I File My Size/Status Protest?

Options for Eligibility (Size, Status) Protests: U.S. Small Business Administration (“SBA”)

• Size, Sometimes Eligibility Factors Department of Veterans’ Affairs (“VA”)

• VA SBVOSB “Ownership” and “Control” • Size will be referred to SBA




Size and Status Protests: How Do I File My Size Protest?

13 CFR 121.1003 : A protest involving a government procurement or sale

must be filed with the contracting officer for the procurement or sale, who must forward the protest to the SBA Government Contracting Area Office serving the area in which the headquarters of the protested concern is located, regardless of the location of any parent company or affiliates.




File with the Contracting Officer, who will forward to the appropriate bodies

Remember: You might need to file 2 separate protests (Size,

and Status) even though you are sending both to the same CO

Size and Status Protests: How Do I File My Status Protest?




Size and Status Protests: What Do I File With My Protest?

What are the requirements for filing? In writing Specify all grounds upon which protests are based Specific facts, or allegations – “Bare Allegations” are

insufficient

Include EVERY possible basis for protest!




Size and Status Protests: When Do I File My Protest?

What Time Limits Apply? Sealed Bids – 5 Days after Bid Opening for the

Contract/Task Order Negotiated Procurement – 5 Days after Notice to

Unsuccessful Offeror re: Identify of Prospective Awardee




Size and Status Protests: What Happens After Filing

SBA notifies protested party of the protest and allows chance to respond. (*355 form*) This is your Due Process Chance to Respond! Utilize it accordingly!!!

SBA will determine the status of the protested concern within fifteen days

after receipt of the protest (sometimes extensions are granted to the agency) The SBA then notifies the CO, the protestor, and the protested concern in

writing of its determination The protested concern, the protestor, or the CO may file an appeal of the

protest to OHA (SBA’s Office of Hearing and Appeals)



Size Investigations




Size Investigations and Determinations

May be initiated by SBA itself (though often spurred by protests or letters from competitors)

The size determination will be based primarily on the information supplied by the protestor or the entity requesting the size determination and that provided by the concern whose size status is at issue. The determination, however, may also be based on grounds not raised in the protest or request for size determination. SBA may use other information and may make requests for additional information to the protestor, the concern whose size status is at issue and any alleged affiliates, or other parties. (Is this language enforceable after Miles and AmBuild?)

Burden of persuasion: The concern whose size is under consideration has the burden of establishing its small business size




Time frame for making size determination:

After receipt of a protest or a request for a formal size determination, the SBA Area Office will issue a formal size determination within 15 business days, if possible

The contracting officer may award a contract after receipt of a protest if the contracting officer determines in

writing that an award must be made to protect the public interest If SBA does not issue its determination within 15 business days (or request an extension that is granted), the

contracting officer may award the contract if he or she determines in writing that there is an immediate need to award the contract and that waiting until SBA makes its determination will be disadvantageous to the Government

The SBA will base its formal size determination upon the record, including reasonable inferences from the

record, and will state in writing the basis for its findings and conclusions SBA will promptly notify the contracting officer, the protester, and the protested concern. SBA will send the

notification by verifiable means, which may include facsimile, electronic mail, or overnight delivery service





What are the requirements for representing small business size status, and what are the penalties for misrepresentation?

Presumption of Loss Rule: In every contract, subcontract, cooperative agreement, cooperative research and development agreement, or grant which is set aside, reserved, or otherwise classified as intended for award to small business concerns, there shall be a presumption of loss to the United States based on the total amount expended on the contract, subcontract, cooperative agreement, cooperative research and development agreement, or grant whenever it is established that a business concern other than a small business concern willfully sought and received the award by misrepresentation (But…)

Penalties for Misrepresentation: Suspension or debarment; Civil Penalties; Criminal Penalties





Appeals from formal size determinations may be made to OHA. Unless an appeal is made to OHA, the size determination is the final decision of the agency – 13 CFR § 121.1101

A concern may request SBA to recertify it as small at any time by filing an application

for recertification with the Government Contracting Area Office responsible for the area in which the headquarters of the applicant is located, regardless of the location of parent companies or affiliates. No particular form is prescribed for the application; however, the request for recertification must be accompanied by a current completed SBA Form 355 and any other information sufficient to show a significant change in its ownership, management, or other factors bearing on its status as a small concern - 13 CFR§ 121.1010




Eligibility Examinations





What is an Eligibility Examination?

Purpose: To verify the accuracy of any certification made or information provided as part of the certification process

Eligibility examinations may verify that a concern meets

eligibility requirements at the time of the examination SBA/VA may perform eligibility examinations at any time




What Happens As Part of An Eligibility Examination?

SBA/VA will notify the concern in writing that it will conduct an examination to verify the status of the concern

• Note: there is a right to conduct a site visit without prior notification to the concern.

Government will request that the concern provide documentation and information related to the concern's eligibility.

Government will Issue a Decision Reconsideration? Consequences…




Recent Developments…



Questions?




Conclusion: Complete your class survey (link provided) to receive your

certificate of completion Let us know what questions come up! Call 866-579-1346 or email [email protected] Attend upcoming virtual/in-person classes Visit our website for complete listing www.GovernmentContractingInstitute.com

NEW: On-Demand Classes

Wrap Up


mailto:[email protected]

http://www.governmentcontractinginstitute.com/



Maria L. Panichelli, Esq. [email protected] @MariaPanichelli (twitter) www.linkedin.com/in/mariapanichelli/

Contact Information

Edward T. DeLisle, Esq. [email protected]

@ed_edelisle (twitter) https://www.linkedin.com/pub/ed

ward-delisle/42/1b5/1a6



http://www.linkedin.com/in/mariapanichelli/


https://www.linkedin.com/pub/edward-delisle/42/1b5/1a6

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debriefings, bid protests, and anichelli size/status eligibility … · 2018-08-21 · debriefings,...

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