Bid Protests - Association of Corporate Counsel · Bid Protests July 25, 2017 ... Make and model of...

Perkins Coie LLP

Bid Protests

July 25, 2017

Andrew E. Shipley, Partner Perkins Coie

Seth H. Locke, Counsel Perkins Coie

Ken Reiss, Corporate Director and

Assistant General Counsel Northrop

Grumman

Perkins Coie LLP | Confidential | 2

ANDREW E. SHIPLEY | PARTNER

WASHINGTON, DC

+1.202.434.1604

[email protected]

EDUCATION• HARVARD LAW SCHOOL, J.D.,

CUM LAUDE, 1984

• UNIVERSITY OF MARYLAND, B.S.,

JOURNALISM, MAGNA CUM

LAUDE, 1981

Speaker Bio

As chair of Perkins Coie’s Government Contracts practice, Andrew Shipley focuses on

government contract litigation and counseling and commercial litigation. He litigates in

state and federal courts across the country, as well as before various government

Boards of Appeal and administrative agencies, including GAO and ODRA. He regularly

advises clients on claims, contracts, regulatory and data rights matters. Prior to his

return to private practice, Andrew managed an in-house litigation/bid protest group for a

FORTUNE 100, multinational government contractor.

Recent successful representations include a bid protest for Intelsat of the award of a

$450 million U.S. Navy contract and a precedent-setting argument on behalf of Harris

challenging a $335 million IDIQ award from the FBI. Andrew’s clients range from

traditional and nontraditional defense contractors in aerospace, defense, technology and

construction to consumer corporations, financial and health services providers pursuing

opportunities to conduct business with the federal government.

While he was in-house, Andrew co-founded and co-chaired a Litigation Forum focused

exclusively on the needs of in-house counsel. He also served on the Board of Directors

for the National Capital Region chapter of the American Corporate Counsel Association.

PROFESSIONAL RECOGNITION

• Listed in Chambers USA as a noted practitioner, 2017

• Recipient of Law360 MVP Award, Government Contracts, 2016

• Listed in Washington D.C. Super Lawyers, 2014 – Present

• Recipient of the 2014 Burton Award for Distinguished Legal Writing

Full Bio Available at http://www.perkinscoie.com/AShipley/

mailto:[email protected]


SETH LOCKE | COUNSEL

WASHINGTON, DC

+1.202.654.6267

[email protected]

EDUCATION• THE GEORGE WASHINGTON

UNIVERSITY LAW SCHOOL, J.D., WITH

HIGH HONORS, 2008, ASSOCIATE, THE

GEORGE WASHINGTON LAW REVIEW

• BOSTON UNIVERSITY SCHOOL OF LAW,

2006

• WASHINGTON UNIVERSITY IN ST.

LOUIS, B.A., HISTORY, WITH HONORS,

2005

Speaker Bio

In his counsel to government contractors, Seth Locke protects clients’

rights and interests during bid protests, cost accounting claims, contract

performance issues and other disputes. He advocates before the Board

of Contract Appeals, the Court of Federal Claims and the Government

Accountability Office.

Recognized as a Law360 Rising Star in 2016, Seth teaches at The

George Washington University Law School, his alma mater, as a guest

seminar lecturer on Board of Contract Appeals litigation, and he has also

taught courses for Federal Publications Seminars and provides a range

of continuing legal education presentations for clients. Seth’s pro bono

practice includes working with the National Veterans Legal Services

Program to assist veterans in submitting claims for combat-related

special compensation to the U.S. Department of Defense.

Full Bio Available at http://www.perkinscoie.com/SLocke/


KEN REISS | CORPORATE DIRECTOR AND ASSISTANT GENERAL COUNSEL

NORTHROP GRUMMAN

Speaker Bio

Ken is a Corporate Director and Assistant General Counsel for Northrop

Grumman Corporation, where he has worked since 2002. He is

responsible for all legal disputes arising in the Eastern U.S. Region,

Europe and Middle East, including those in the areas of government

contracts, bid protests, False Claims Act, commercial contracts,

intellectual property, employment, environmental, toxic tort, personal

injury, real estate and tax. He has been a Litigation Forum Co-Chair for

the ACC National Capital Region since 2012. FALLS CHURCH, VA

EDUCATION

• UNIVERSITY OF VIRGINIA

SCHOOL OF LAW, J.D., 1992

• DUKE UNIVERSITY, B.S.

COMPUTER SCIENCE, SUMMA

CUM LAUDE, 1987

Perkins Coie LLP | PerkinsCoie.com

Understanding the Process

• Standing

• Deciding to File

• Forum Choices

• Filing Deadlines

• Protective Orders

• Discovery

• Relief

5


Protest Overview

6

What is a bid protest?

• Written objection to a procurement procedure or

award

• Pre-award

• Post-award

• Must allege standing and prejudice


Protest Overview

7

Who may file?

• Interested Parties

• Pre-award: Actual or prospective bidder

• Post-award: Next in line or otherwise eligible for award

• Intervenor

• Pre-award: Bidders or offerors with a reasonable chance

of receiving an award.

• Post-award: Only awardee may intervene


Gathering Information

8

• Pre-Award: Question and Answer Process

• Identify any issues in the solicitation

• Post-Award: Debrief

• Independent Research

• OCI, Awardee past performance, PIA


Debriefings

9

• Must request in writing within three days of

notice of exclusion from competition or

award

• Ask for in-person debriefing if possible

• Prepare written questions in advance

• May be done orally or in writing

• Contracting Officer typically chairs debrief

• GAO does not review an Agency’s failure to

hold a debriefing


Pre-award Debrief

10

• Exclusion from competition

• Can be deferred until after award

• Careful, if contractor requests it be deferred, it is no

longer subject to timeliness exception for filing protest

after debrief

• Must provide at a minimum:

• Evaluation of significant elements in offeror’s proposal;

• Summary of rationale for eliminating offeror from

competition; and

• Reasonable responses about whether the agency

complied with the solicitation and applicable regulations


Pre-award Debrief

11

• Shall not disclose:

• The number of offerors

• The identity of other offerors

• The content of other offerors’ proposals

• The ranking of other offerors

• The evaluation of other offerors; or

• A point by point comparison with other offerors

or other confidential and proprietary information

• Lack of information may make it difficult to

determine whether to protest


Post-award Debrief

12

• Must provide at a minimum:1. Evaluation of significant weaknesses or deficiencies

2. Overall evaluated cost or price and technical rating of the

successful offeror and the debriefed offeror, and past

performance information on debriefed offeror

3. Overall ranking of offerors (when applicable)

4. Summary of the rationale for award

5. Make and model of commercial item acquisitions if

applicable

6. Reasonable responses to questions about whether the

agency complied with the solicitation and regulations


Post-award debrief

13

• Shall not provide:

• Point-by-point comparison of debriefed

offeror’s proposal with those of other

offerors

• Trade secrets

• Privileged or confidential manufacturing

processes or techniques

• Privileged or confidential commercial and

financial information

• Names of individuals providing past

performance information


Sample Questions

14

• Other than the FAR, did the Agency follow any other

guidelines in evaluating the proposal?

• Did any non-government personnel participate in the

evaluation? If so, who were they and what were their roles?

• Did the Agency perform a cost realism analysis of the

proposal?

• Did the SSA rely on any recommendations in making his / her

selection decision? If so, who made the recommendation?

Did the SSA concur with the recommendation?

• Please provide copies of today’s debriefing materials /

technical evaluation report / cost – price evaluation report /

competitive range determination


Deciding to Protest

15

• Stay of performance for incumbent

• Opportunity to stay in the game

• Consider likelihood of obtaining award

• Winning the protest does not mean you will win the

contract

• Importance of sending a message

• Most CO’s understand that protests are part of doing

business

• Be judicious in weighing potential benefits and

relationships


Choice of Forum

16

• Procuring Agency

• GAO – 2,789 protests filed in 2016

• Court of Federal Claims – 124 protests

filed in 2016


Choice of Forum: The Procuring Agency

17

• The Procuring Agency

• Pros: Cheaper and faster than other fora

• Cons: No discovery / relies on agency self-evaluation

• Typically reserved for obvious mistakes or to alert

CO to concerns

• Requested relief: voluntary corrective action


Choice of Forum: The GAO

18

• The GAO

• Most commonly used forum

• Automatic suspension of contract performance

• Limited discovery

• Protective Order

• Protest resolved within 100 days

• Issues recommendations – not enforceable judgments

• Agencies almost always implement recommendations

• Occasional tension with COFC



19

• Procedure

• Protest filed with document requests

• GAO notifies Agency to trigger stay and issues protective

order

• Agency Report and Record due within 30 days

• Comments from Protester / Intervenor due 10 days later

• Supplemental Protest also due 10 days after Record

• Hearings (unusual)

• Outcome Prediction (occasionally)

• Decision: Sustain (corrective action) or Deny

• Successful protester entitled to reasonable protest costs

• B & P costs if corrective action unavailable



20

GAO Bid Protest Annual Report to Congress for Fiscal Year 2016, available at https://www.gao.gov/products/GAO-17-314SP.

https://www.gao.gov/products/GAO-17-314SP


Choice of Forum: Court of Federal Claims

21

• The Court of Federal Claims

• No automatic stay; must seek preliminary injunction

• Jurisdiction independent of GAO

• Any pending GAO protest automatically dismissed

• “Appeal” from GAO decision

• No statutory deadline for resolution

• Court has the ability to enforce judgments


Choice of Forum: Court of Federal Claims

22

• Procedure

• Provide required notice

• File Complaint and motion for injunctive relief

• Motion to seal record and for protective order

• Early status conference with court

• Administrative record

• Typically more comprehensive than Agency record at GAO

• Judgment

• Cannot recover protest costs

• May recover B & P costs


Filing Deadlines

23

GAO and Agency Level

• Pre-Award Protest:

• Solicitation impropriety due prior to date for

submitting proposals

• Do not hesitate to raise issues/ambiguities in solicitation

terms

• Competitive range due 10 days from debrief or

knowledge of protest grounds

• Post-Award Protest:

• Ten Day Rule

• Five Day Rule


Filing Deadlines

24

Court of Federal Claims

• Pre-Award Protest:

• Solicitation impropriety due prior to date for

submitting proposals

• Competitive range – no specific deadlines but file

before award

• Post-Award Protest:

• No specific deadlines for COFC protests aside from SoL

• Court can dismiss significantly delayed filing based on

laches


Keys to a Successful Bid Protest

25

• GAO Report to Congress:

• Our review shows that the most prevalent reasons for sustaining

the protests during the 2016 fiscal year were:

(1) Unreasonable technical evaluation;

(2) Unreasonable past performance evaluation;

(3) Unreasonable cost or price evaluation; and

(4) Flawed selection decision


Grounds for Protesting

26

• Overly restrictive solicitation provisions

• Improper sole source award

• Organizational conflicts of interest

• Reliance on undisclosed evaluation criteria

• Improper discussions

• Improper rejection of proposal

• “Too close at hand”

• Bait and switch


Protest Grounds Doomed to Fail

27

• Mere disagreement with Agency’s

judgment

• Complaints about contract administration

• Challenge to awardee’s small business

status

• Untimely assertions

• Ancillary disputes, e.g., breach of NDA


Unpleasant Surprises

28

• OCI Waiver

• Contract Administration

• Failure to Establish Prejudice

Perkins Coie LLP | PerkinsCoie.com29

Questions?

All rights reserved. This seminar handout is not intended to be and should not be used as a substitute for specific legal advice, since legal opinions

may be given only in response to inquiries regarding specific factual situations. Subsequent legal developments after the date of specific seminars

may affect some of the legal standards and principles discussed. If legal advice is required, the services of counsel should be sought.

Copyright © Perkins Coie LLP 2017.

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