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If your business has inquiries or concerns regarding a bid protest or a debriefing, get in touch with a lawyer at our firm today. We can assess your situation and take the steps necessary to protect your rights in the contract award process.
Filing a Timely Protest and Staying Performance
Firms with valid grounds for protest all too often seek legal advice too late to obtain a timely protest and/or stay performance. In order to prevent this, a contractor should be aware of the timeliness rules and rules for obtaining a stay at the various bid protest forums.
Government Accountability Office (“GAO”) Protests
- In order to be TIMELY a GAO protest based on a SOLICITATION DEFECT must be filed prior to the time for receipt of proposals. Examples of solicitation defects include unduly restrictive specifications or other contract provisions and the failure of the solicitation to meet legal requirements such as bundling, domestic preferences, small business, etc.
- In order to be TIMELY a GAO protest based on OTHER THAN A SOLICITATION DEFECT must be filed the later of (a) within 10 days of when the protestor knew or should have known the ground of protest, whichever came first or (b) within 10 days of a required debriefing. The most common basis for a protest other than a solicitation defect is improper evaluation of proposals. See discussion of debriefings below.
- In order to be TIMELY a GAO protest FOLLOWING A TIMELY AGENCY PROTEST must be filed within 10 days of when the protestor knew or should have known of adverse agency action, whichever came first.
- In order to obtain a STATUTORY STAY at GAO a protest must be filed and agency notified by GAO either within (a) 10 days of award or (b) 5 days of the earliest date offered for a required debriefing.
See discussion of debriefings below.
Protestors should file before the due date because GAO is allowed one calendar day to notify the agency of the protest after filing. Timely notification from GAO is required for a statutory stay.
It is important to note that the time for obtaining a stay at GAO is not extended by a prior timely agency protest. Thus, pursuing an agency protest generally precludes obtaining a stay in a subsequent GAO protest.
U.S. Court of Federal Claims ("COFC") Protests
- In order to be TIMELY a COFC protest based on a SOLICITATION DEFECT must be filed prior to the time for receipt of proposals.
- In order to be TIMELY a COFC protest based on OTHER THAN A SOLICITATION DEFECT must be filed before the Government is prejudiced by the delay.
- In determining whether to obtain a temporary restraining order or preliminary injunction staying performance the Court will consider: (1) the protestor’s likelihood of success on the merits; (2) whether the protestor will suffer irreparable harm if injunctive relief is not granted; (3) whether the balance of hardships to the parties favors the grant of injunctive relief; and (4) whether it is in the public interest to issue injunctive relief.
There are no automatic stays at the COFC. As a condition of granting injunctive relief the Court may require the protestor to furnish a bond which may be lost if the protest is denied.
Procuring Agency Protests
- In order to be TIMELY an AGENCY protest based on a SOLICITATION DEFECT must be filed prior to the time for receipt of bids or proposals.
- In order to be TIMELY an AGENCY protest based on OTHER THAN A SOLICITATION DEFECT must be filed within 10 days of the earlier of when the protestor knew or should have known the ground of protest.
- In order to obtain a STAY an AGENCY protest must be filed either within (a) 10 days of award or (b) 5 days of the earliest date offered for a required debriefing.
Seidman and Associates, P.C. generally does not recommend agency-level protests. There is no discovery in agency protests. An agency is often less than objective in reviewing its own procurement decision. Finally, an agency protest generally precludes a statutory stay in a subsequent GAO protest.
The above rules concerning timeliness and obtaining a stay at the various procurement forums are general. Legal advice should be sought concerning the particular facts of your case.
A contractor should always seek a debriefing. Debriefings provide an opportunity to examine the agency’s procurement decision-making process and learn how to improve future proposals. Debriefings are also a source of information for protest grounds. It is in the contractor’s best interest to take advantage of the debriefing to learn as much as possible.
The focus of a debriefing is to obtain information rather than convince the Government to change its award decision. Counsel can help prepare for a debriefing but should not generally be present or agency personnel may clam up.
As discussed above, a required debriefing extends the time for submitting a GAO or agency bid protest and obtaining a stay. A debriefing concerning a competitive procurement is a generally required debriefing if an offeror submits a written request to the contracting officer for a debriefing within 3 days of the date on which the offeror received notification of contract award or exclusion from the competitive range.
Thus in order to extend the time for submitting a GAO or agency protest and obtaining a stay a contractor must submit a written request for a debriefing within 3 days of receiving notice of award. Such notice usually takes the form of receipt by the contractor of the Notification to Unsuccessful offerors required by FAR 15.503.
Preparing for Debriefings
(i) The number of offerors solicited;
(ii) The number of proposals received;
(iii) The name and address of each offeror receiving an award;
(iv) The items, quantities, and any stated unit prices of each award. If the number of items or other factors makes listing any stated unit prices impracticable at that time, only the total contract price need be furnished in the notice. However, the items, quantities, and any stated unit prices of each award shall be made publicly available, upon request; and
(v) In general terms, the reason(s) the offeror’s proposal was not accepted, unless the price information in paragraph (b)(1)(iv) of this section readily reveals the reason. In no event shall an offeror’s cost breakdown, profit, overhead rates, trade secrets, manufacturing processes and techniques, or other confidential business information be disclosed to any other offeror.
The contractor to be debriefed should also review its own proposal, the requirements for proposal submissions in Solicitation Section L, and the evaluation factors in Solicitation Section M.
In a post-award debriefing, the contractor should ask about its standing in relation to other offerors. In order to be an interested party entitled to bring a protest a protestor must be in line for award if the protest is sustained.
The procedures and rules for a debriefing are set forth below.
A pre-award debriefing is a required debriefing if the offeror submits a written request for a debriefing within 3 days of receipt of notice that it is not in the competitive range or is otherwise excluded from the competition. The time for submitting a GAO protest and obtaining a statutory stay is extended only for required debriefings.
Pre-award debriefings should be held as soon as is practicable for the agency. The agency may delay the debriefing until after award if the contracting officer determines it is not in the best interests of the Government to conduct debriefings before award.
At the offeror’s request the debriefing may be delayed until after award. However, this does not extend the time for submitting a bid protest.
Pre-award debriefings may be done orally, in writing, or by any other method acceptable to the contracting officer. FAR 15.505(e) requires that a pre-award debriefing include:
(1) The agency’s evaluation of significant elements in the offeror’s proposal;
(2) A summary of the rationale for eliminating the offeror from the competition; and
(3) Reasonable responses to relevant questions about whether source selection procedures contained in the solicitation, applicable regulations, and other applicable authorities were followed in the process of eliminating the offeror from the competition.
A post-award debriefing is a required debriefing if the offeror submits a written request for a debriefing within 3 days after the date on which the offeror received notification of contract award. The time for submitting a GAO or agency protest and obtaining a stay is extended only if a debriefing is a required debriefing.
To the maximum extent practicable, the debriefing should occur within 5 days after receipt of the written request.
Post-award debriefings may be done orally, in writing, or by any other method acceptable to the contracting officer. FAR 15.506(d) requires that post-award debriefings include:
(1) The Government’s evaluation of the significant weaknesses or deficiencies in the offeror’s proposal, if applicable;
(2) 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;
(3) The overall ranking of all offerors, when any ranking was developed by the agency during the source selection;
(4) A summary of the rationale for award;
(5) For acquisitions of commercial items, the make and model of the item to be delivered by the successful offeror; and
(6) Reasonable responses to relevant questions about whether source selection procedures contained in the solicitation, applicable regulations, and other applicable authorities were followed.
The aforementioned statement of general principles applicable to bid protests and debriefings is not intended as legal advice. In order to obtain legal advice applicable to specific facts a consultation is required.