Georgia Tech Procurement Assistance Center

New rules for filing protests at GAO and new DFARS debriefing requirements

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The Government Accountability Office {GAO) finally has unveiled its long-awaited Electronic Protest Docketing System (EPDS).

Effective May 1, 2018, all new protests (excluding those containing classified material) must be filed using GAO’s EPDS.

In addition, the National Defense Authorization Act (NDAA) for 2018 enhanced debriefing requirements for all contract and task order awards valued at $10 million or more. Under the new rules, contracting officers must provide unsuccessful offerors an opportunity to submit additional questions related to the debriefing within two business days after receiving the initial debriefing. The agency then has five business days to respond after receipt of the questions.

See details on both of these new requirements at: http://www.mondaq.com/article.asp?articleid=697940

Pentagon seeks to limit bid protests in federal court

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The Defense Department is proposing legislation to impose new constraints on government contractors’ ability to protest federal agencies’ award decisions, including by rolling back their rights to file bid protests in federal court.

Currently, companies who believe an agency mishandled a contract award have two independent forums to file protests: the Government Accountability Office and the U.S. Court of Federal Claims (COFC). But some firms opt to take their cases to both.

If, for example, GAO denies or dismisses their protest, they still have the right to file a new claim at the COFC.

DoD’s proposal would essentially eliminate that option by requiring contractors to bring cases to COFC within 10 days of the agency’s award decision: the same deadline used by GAO. Since GAO has up to 100 days to sustain or deny a protest, a company could not wait and use the court as a backstop if it loses its case at GAO.

Keep reading this article at: https://federalnewsradio.com/defense-main/2018/05/pentagon-seeks-to-limit-bid-protests-in-federal-court/

GAO bid protests must be submitted online starting in May

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Vendors that don’t like the results of a contract award will have to go online to take up their beef up with the Government Accountability Office (GAO) starting next month.

GAO on Thursday announced its plans to launch the electronic bid protest docketing system, a web portal where groups can securely file protests to federal contract awards. Vendors will be required to submit all new protests through EPDS beginning May 1.

“This new system modernizes the bid protest process at GAO and will make it a much more efficient process,” said Comptroller General Gene Dodaro, who heads the congressional watchdog agency, in a statement.

Keep reading this article at: http://www.nextgov.com/it-modernization/2018/04/all-bid-protests-must-be-submitted-online-starting-may/147257/

The Government Accountability Office’s (GAO) new Bid Protest Regulations, effective May 1, 2018, are at: https://www.federalregister.gov/documents/2018/04/02/2018-06413/government-accountability-office-administrative-practice-and-procedure-bid-protest-regulations

Contractors face changes to bid protest strategies

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The National Defense Authorization Act (NDAA) for fiscal year 2018 includes some significant changes affecting contractors, particularly with regard to challenges to requests for proposals and contract awards, otherwise known as “bid protests.”

The key bid protest changes in the new NDAA are: the introduction of a new pilot program under which large defense contractors will be required to pay the Defense Department’s costs where a protest is denied; and the enhancement of post-award debriefing rights.

While Congress passed the former with the intent of reducing frivolous protests, it is likely the latter — which will give contractors greater insight into the rationale behind procurement decisions — that will have a greater impact on the number of protests filed.

Section 827 of the act requires that the department establish and implement a three-year pilot program under which “large” defense contractors will be required to reimburse the department for “costs incurred in processing covered protests” for protests “denied in an opinion” by the Government Accountability Office.

Keep reading this article at: http://www.nationaldefensemagazine.org/articles/2018/3/6/contractors-face-changes-to-bid-protest-strategies

Five factors for proposal evaluation: Creating bids that will survive a protest

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Submitting the winning bid is an exhilarating feeling, dimmed only by the following days, as the offeror waits to hear if others may file a protest.

Once a protest is filed, offerors options are limited.

One option that is available to offerors, but often ignored is the right to hire qualified counsel to represent their interests.  Government contract attorneys are in a unique position, in that, while they are ethically obligated to protect their client’s interests, they are prohibited from discussing certain information with their clients.  This frustrates offerors, and limits an attorney’s opportunities to provide valuable information about how things might have been different, had the offeror only done something different.

Keep reading this article at: https://www.bidprotestweekly.com/five-factors-for-proposal-evaluation-creating-bids-that-will-survive-a-protest/

Bid protests decline in 2017

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The number of bid protests filed by contractors declined in fiscal 2017 after increasing each year since fiscal 2013.

Contractors filed 2,596 bid protests in fiscal 2017, down 7 percent from a record 2,789 protest cases filed last year, according to a Government Accountability Office report. GAO adjudicates the vast majority of protests.

Source: GAO

While the number of protests decreased, the effectiveness of protests filed increased one point, to 47 percent, according to GAO data. This indicates that contractors filing protests in fiscal 2017 obtained some form of relief from the agency—either as a result of an agency’s corrective action or GAO sustaining the protest—at a higher clip than in any of the previous five years.

Keep reading this article at: http://www.nextgov.com/cio-briefing/2017/11/bid-protests-decline-2017/142576

August 2017 protests underscore impact of government’s discretion

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There is no question that procurement regulations give agencies significant discretion at every step of the procurement process, and protesters often have a hard row to hoe to overcome the agency’s exercise of that discretion.

However, agencies often make that task easier by failing to provide full and logical explanations of their decisions that show they have considered all the relevant facts in light of the competing goals of the procurement system, not just the agency’s objective.

The following cases from August illustrate this point.

Keep reading this article at: http://www.mondaq.com/article.asp?articleid=629184

Bid protest corrective action: You can’t always get what you want

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Every government contractor that files a bid protest has the same goal in mind – corrective action.  The agency made a procurement error and changes need to be made.

us-court-of-appealsBut just because the agency takes corrective action does not mean it will be the corrective action your firm wants.  Contractors should take the time to consider the possible outcomes of a successful bid protest before filing.

Take, for example, the recent U.S. Court of Federal Appeals decision denying a protest over corrective action.  In that case, an unsuccessful offeror successfully protested a United States Transportation Command non-temporary storage contract.  In response to the protest, the agency took corrective action and started the process of re-evaluating all offerors in order to make a new award decision.

But this was not the corrective action the protestor expected.  Because the protest argued that the original awardee’s proposal was technically deficient, the protestor wanted the government to cancel the first award and make a new award decision (in its favor) without further evaluation.

The Court rejected the idea that a protester can limit the agency’s authority to correct evaluation errors.  To the contrary, the decision holds that it is within the agency’s discretion to review its prior conclusions and conduct a re-evaluation (provided that the new evaluation conforms to the solicitation and is fair to all offerors).

So is the takeaway that your firm shouldn’t file a protest unless it knows it will receive the award?

Keep reading this article at: http://www.mondaq.com/article.asp?articleid=531868

Trend? GAO increasingly finding in favor of protesters

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Sustained!Through the first 5 months of FY 2016, GAO is sustaining protests at a 22% clip — a far higher rate than in recent years.

GAO’s sustain rate considers only those protests that go to a decision on the merits, and reflects the percentage of those protests where GAO finds in favor of the protester. In recent years, GAO’s sustain rate has generally declined.

But in the same period, protesters’ overall rate of success at GAO has remained quite high. GAO’s “effectiveness rate” — the percentage of protests where the protester obtains relief through either a favorable GAO decision or voluntary agency corrective action — has remained above 40% for nearly a decade. Last year, it was 45%.

Keep reading this article at: https://www.insidegovernmentcontracts.com/2016/03/gao-protest-sustain-rate-on-the-rise-2/ 

GAO report is a good reminder to bidders: Agencies don’t always follow the rules!

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The United States government has awarded more than $280 billion in contracts so far this fiscal year — FY2015 ends September 30.  Last year, that number was just over $445 billion on September 30.  (Data available online at https://www.usaspending.gov).  While this year’s total contracts awarded will be less than last year, the disparity reveals that the rest of August and September is likely to set a blistering pace of federal contract awards.

GAO-GovernmentAccountabilityOffice-SealIn late July, the Government Accountability Office (GAO) — tasked with investigating how the federal government spends taxpayer dollars — released what many are calling a scathing report.  The report explains that many federal agencies fail to follow the procurement regulations found in the Federal Acquisition Regulations (FAR).  The report is a good reminder for contractors who bid on federal procurements to be watchful of procurements that appear to deviate from the rules.  Data suggest not only that these agencies are breaking the rules, but also that protestors who call them on it are increasingly getting some relief.

The percentage of protesters obtaining relief—either through a protest being sustained or voluntary action taken by an agency—is called the effectiveness rate. From FY2001 to FY2014, the effectiveness rate of GAO protests grew from 33% to 43% (see Figure 2). Over the last five fiscal years the effectiveness rate has remained relatively stable, averaging 42%.
The percentage of protesters obtaining relief — either through a protest being sustained or voluntary action taken by an agency — is called the effectiveness rate. From FY2001 to FY2014, the effectiveness rate of GAO protests grew from 33% to 43% (see above). Over the last five fiscal years the effectiveness rate has remained relatively stable, averaging 42%.  Source: Congressional Research Service at https://www.fas.org/sgp/crs/misc/R40227.pdf

 

Congress typically funds federal agencies through annual appropriations.  An elementary principle of federal fiscal law is that if an agency’s appropriations are not obligated by the end of the fiscal year in which the appropriation was made, those funds expire and generally become unavailable to the agency.  Often, agencies spend their appropriated funds late in the year in an effort to save some “dry powder” early on in case an unforeseen need arises.

With Congress always looking for ways to cut spending, agencies do not want to end a fiscal year with unobligated funds.  In Washington it is hard for an agency to justify to lawmakers the need for more money if the money Congress appropriated last year — money the members of Congress had to explain to their constituents was needed then — was not used.  Accordingly, at the end of each fiscal year agencies resolve this dilemma by finding ways to close the gap between the portion of their appropriation obligated and the portion faced with becoming expired on September 30.  Too often that solution is a less than ideal procurement.

With only a little over $280 billion in federal contract awards to date, federal agencies look posed to make another year-end dash to spend our cash.

Keep reading this article at: http://www.mondaq.com/article.asp?articleid=421792

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