Let’s get really practical
about this. You have submitted your proposal
and called the contracting officer to ensure you will promptly receive the required award notification.
Information is needed, but you must stay alert and prompt the proper response if necessary. You get the
message, and you do not win. What
next?
You need someone with considerable protest experience to guide you through the following steps. The analysis of whether to protest is the first critical step. The timeliness rules, discussed in another blog in more detail, also are of the utmost importance. Asking for a debriefing is almost always bright, and such a request tolls the running of the time limits on a protest. FAR 15.506 includes a list of specific items the government must cover in the debriefing. Insist on disclosure of all the required information. Even if a debriefing is unnecessary or you are told FAR Part 15 does not apply, insist on a thorough debriefing. Almost all competitive procurements implicate the principles outlined in FAR. The debriefing should give you some (although usually limited) insight into why you lost the award. Agencies are now required to be forthcoming and candid in these debriefings. Agencies still are concerned that too much information will only lead to the inevitable protest. Nevertheless, in our opinion, more transparency actually does avoid protests.
The critical step is evaluating the merits and the decision to protest. As we have said, until we are blue in the face, do not protest unless a regulation has been violated. Again, you need an outside expert with extensive experience to help you with the analysis. If you decide to protest, you must do so through an attorney who can gain access to the complete record under a protective order. The study of whether a regulation has been violated is grist for the person who has been there many times before.
Finally, the debriefing only gave you some information about what is in the record, yet it looks as if a regulation may have been violated. What do you do? Often, the only way to find out whether you have solid ground to protest is to protest.
We have often said, “Do not protest unless the government violates a statute or regulation.” We mean it. Bid protests are rarely, very rarely, successful without showing a statutory or regulatory violation. So, let’s look at the skeleton and circulatory system of a successful bid protest.
- FAR 15.304. This is the regulation stating the award decision must be based on the evaluation factors and significant sub-factors outlined in the solicitation. Any deviation or unequal treatment among contractors is illegal.
2.
FAR 15.305.
This is a companion to 15.304, making it abundantly clear how contractors will be evaluated. Any
deviation from this regulation is illegal.
3.
FAR 15.306.
This section sets forth the rules for discussions (negotiations) with
contractors. Once the decision is made
to discuss (negotiate) proposals, the contracting agency must deal with
all contractors within the competitive range and allow each contractor to revise its proposal when discussions are concluded. It is illegal to favor one contractor over
another, reveal one contractor’s solution to another contractor, or reveal one
contractor’s price or references to another contractor.
4.
FAR 15.308.
The source selection decision must be based on the independent judgment
of the source selection authority (SSA), and it must be thoroughly documented to
include the rationale for any business judgments and tradeoffs made or relief by the SSA.
You must prove your case. How do you do it? You must see the complete agency administrative record. How do you get to see it? You must hire an outside consultant to help with the protest. You will not be allowed to see the complete agency file, but your consultant will be given access under a protective order. There is just no way around it. To see the entire file, you must retain outside help.
No comments:
Post a Comment