2.6 Protests Don Shannon
What is a Protest? • Discussed in FAR Part 33.1 • Is “a written objection by an interested party” to • (1) a solicitation or other request by an agency for offers for a contract for the procurement of property or services • (2) The cancellation of the solicitation or other request • (3) An award or a proposed award of the contract • (4) A termination or cancellation of an award • Must contain written objection that the termination or cancellation is based in whole or in part on improprieties concerning the award of the contract.
When are protests typically filed? • Pre-award • Solicitation Phase • Down select (exclusion from the competitive zone) • Post Award • Time limit is important – 10 Days following contract award or 5 days after a debriefing date is offered
What are the grounds for protests? • Pre-Award • Restrictive requirements • Inappropriate Sole-Source Requirements • Unclear or ambiguous Evaluation Criteria • Ambiguous Requirements • Inappropriate Exclusion from the “Competitive Range”
Post Award • Post Award • Unfair evaluation criteria • Failure to evaluate as advertized • Unreasonable “Best Value” determination • Unequal Treatment • Failure to conduct meaningful discussions • SBA Size protest
Where are Protests Filed • Agency Protest • Prior to protest all parties should avail themselves of opportunities to resolve issue(s) • Agency protest information contained in Solicitation • Protestor may request independent review at at a level above the PCO • GAO Protests
When to File • If issue is with selection criteria protest must be filed before proposal due date. • If acquisition is sealed bid protest must be filed before bid opening • If protest is with selection process then must be within either • 10 days of award decision • 5 days of offer for debrief (which must be made within 3 days of award).
What to file • (i) Name, address, and fax and telephone numbers of the protester. • (ii) Solicitation or contract number. • (iii) Detailed statement of the legal and factual grounds for the protest, to include a description of resulting prejudice to the protester. • (iv) Copies of relevant documents. • (v) Request for a ruling by the agency. • (vi) Statement as to the form of relief requested. • (vii) All information establishing that the protester is an interested party for the purpose of filing a protest. • (viii) All information establishing the timeliness of the protest.
Upon Receipt of a Protest • Award is delayed or if awarded contract performance typically stayed • Exceptions for urgent requirements • Must be by head of the Agency • CO prepares a protest file with copies of all pertinent documents for legal counsel • Protestor is allowed access to file subject to “protective orders” which bar disclosure of proprietary information. • Facts are reviewed with the assistance of counsel and a determination is made. (if ‘agency protest’) or agency report is submitted to GAO is protest was filed with them. • Protestor has 10 days to rebut • If hearing is held (by GAO) Protester has 5 days to rebut • Protester is advised of determination – typically within 100 days • If protest was resolved by an agency protest protestor can still appeal to GAO
Protest Outcomes • Upheld. • Protestor files claim for costs within 60 days • Small Businesses entitled to compensation for consultants, expert witnesses, attorney’s fees • Proposal costs also may be paid • Potential for awardee to pay some or all of costs if culpable. • Dismissed • Appeal is possible