John Andre (JA): Hello. Thank you for joining today's Acquisition Learning Seminar hosted by the Federal Acquisition Institute. Today's seminar, entitled "Strategies to Successfully Prevent and Defend Bid Protests", features great speakers from the Department of Defense and the General Services Administration. After shepherding a procurement to contract award, receiving a bid protest can be challenging. But with proper planning from the start of the procurement, you can successfully defend against the bid protest and possibly even prevent it. In this seminar, you will learn the key steps to take from the beginning of a procurement to successfully position yourself to defend against a protest after award. In particular, you will learn the critical importance of treating all offerors equally, following the evaluation scheme established in your solicitation and properly documenting your evaluation process and award decision. You'll also learn the best ways to capitalize on your pre-award efforts if a bid protest is filed. Before we begin, let me address a few administrative items. First, the Federal Acquisition Institute is recording this seminar. The video and the presentation material you see today will be posted in the video library on fai.gov. You should be able to access these items in one to two weeks. Second, we will hold a live question and answer session at the end of today's presentation. If you have a question about bid protests, how to avoid them, how to navigate them, and anything else you may hear from our presenters, we encourage you to submit those questions at any time using the survey link to the right of the video screen. We will collect and review your questions during the presentation, take a short break, and then return to answer the questions submitted. So let's get started. Our presenters, Jennifer Hesch, an attorney with the Defense Health Agency, Department of Defense, and Nathan Guerrero, Senior Assistant, General Counsel in the Personal Property Division, Office of the General Counsel, General Services Administration will explain how to avoid and, if need be, how to manage bid protests. Let's go to them now.
Nathan Guerrero (NG): Good afternoon. My name is Nathan Guerrero.
Jennifer Hesch (JH): I am Jennifer Hesch.
NG: And we are here today to provide you with a presentation entitled "Strategies to Successfully Prevent and Defend Against Bid Protests". The point of this presentation is to provide you with some concrete examples and advice from our own experience for steps that you can take during the course of a procurement to prevent a successful bid protest from being challenged against your contract award. We will mostly focus on protests brought to the Government Accountability Office. Protests can also be brought to the court of federal claims. Overwhelmingly, protests are brought at GAO, and that is what we will focus on. Here is a copy of our agenda for today's presentation. We will begin with an overview of the GAO bid protest process, then we will move to some basic principles applicable to bid protests. We will cover both pre-award steps and post-award steps that you can take to try to defend against a successful bid protest, and we will briefly discuss some post-protest steps that you can take if you receive a protest.
JH: So you all might be wondering -- what is a bid protest? A bid protest is a legal challenge which is brought by an unsuccessful bidder against the way the government has conducted a procurement. Like Nate said, an interested party may protest to the agency, GAO, or court of federal claims, but most protests are filed at GAO. Also, protests can be pre-award or post-award. It is pre-award, it will be about the terms of the solicitation or a competitive range determination. If it is post-award, then it will be a protest regarding the actual award. Now, because we're going to focus on GAO bid protests, you should note that the timeline between when a protest is filed and when GAO renders a decision is 100 days, and that is a very short time-frame, so it is really critical to have all of your ducks in a row before you actually award a contract. That is why our focus today is going to be on making sure you have that done.
Now, we want to talk to you about bid protest trends that we have seen. There is information available. GAO publishes an annual report to Congress, and you can find that on GAO's website or doing a Google search, and that has all of the bid protest data. But the general trend is that bid protests have increased since 2008 by almost 50%. Why is that? Some people believe it is because federal contract spending is at its lowest levels, and a lot of vendors want to have a piece of the pie. When you do look at that data, you will see a really large number for cases filed. That number accounts for every supplemental protest, so when a protest is filed initially, you will get a "B" number, and in every supplemental protest filed on that same matter will be another .1 or .2. Some research has indicated that for every matter protested that there is 1.6 "B" numbers assigned to it, so that is a reason for that large number in terms of cases filed. You'll also see in that chart, it will save merit decisions, and that means whether GAO either sustains or denies a protest, and it will also talk about ADR, which Nate will talk about in a little bit. You should know that merit decisions, either sustain or deny, do not account for an agency taking corrective action for settlements or withdrawals for other reasons. You might be asking yourself what is corrective action and when would you do that, and we will talk a little bit more about that later, but basically corrective action could be a number of things. We really encourage that when you get a protest, whether it is pre-award or post-award, you take a minute to look at the solicitation or the contract award to say OK, did the government act in a graceful manner and did they follow the principles that we talk about today, and if your answer is no, a lot of times it is easier to at that point actually take corrective action on your own and not have to wait the 100 days because that just pushes the timeline out farther into the future, and corrective action could be amending the RFP, republishing the RFP, or just re-evaluating the proposals. It is a case-by-case basis.
NG: If I can jump in there for a minute, Jenny, I would agree with you that it is very often wise to take corrective action in response to a protest if you determine that there is a possibility that the protest might be sustained. My own experience and practice -- I tell contracting staff that there really should not be a circumstance where you actually lose a protest because if you have done everything correctly, then you should be able to defend the protest, and if you determine during the course of a bid protest that there is some impropriety that you have discovered, then you should take corrective action and address that before you get into a decision from GAO.
JH: Right, because then you will get the goods and services or whatever you are procuring at an earlier point in time instead of waiting to do that.
NG: Yes, and you avoid having to publish a decision that calls your agency out to account for having done something that in GAO's view is improper, and in my experience, Contracting Officers and staff and agencies would like to avoid that if possible. It does not always prove possible, but if possible, you can avoid that by taking corrective action in advance.
JH: Right. Did you want to talk a little bit about ADR?
NG: Yes. GAO has become recently more willing and -- put an emphasis on use of ADR, or Alternative Dispute Resolution procedures to address protests early on. This can be useful for agencies to entertain, especially if you think that your procurement was done in accordance with all requirements and you feel like you have a good case, it might be a useful idea to go ahead and take advantage of some of those procedures rather than drawing out the entire 100 days that a GAO protest can take. An ADR can take many different forms. Most frequently, at least in my experience, it involves the GAO attorney who is assigned to handle the protests calling the parties up for a conference call and discussing the issues raised in advance of further argument, written argument about it, and sort of giving their preview about how they think the matter is going. Like I said, if on such a call the GAO attorney provides his or her opinion in advance, if they think there is some merit to the protest, that is the circumstance where you may want to think, "maybe I should go back and look at this again".
JH: And possibly take corrective action.
NG: Yeah. And I have also seen examples where the GAO attorney has indicated to the protester that they believe the protest is completely lacking in merit. I have seen protesters withdrawal protests after such calls
JH: So it can be useful.
NG: Absolutely. Now we are going to move into a brief discussion about some of the basic principles that apply to GAO protests. In fact these apply to protests at the Court of Federal claims and to the agencies as well, but for our purposes, we are focused on GAO protests. I want to briefly discuss the Competition in Contracting Act. I know most people out there listening to this are not lawyers, so I will not give you any legal citation or the whole background, but it is very useful to sort of understand the broad purposes served by the procurement process that we are all a part of and the bid protest process, which is a fundamental part of the procurement process, and a lot of that comes from the Competition in Contracting Act, which was a 1984 act of Congress and was the first major scale, large-scale revision to Federal procurement laws since the 1940's. And made a number of significant changes, some of which we will not touch on here, but the most important one for our purposes was that it established full and open competition as the primary goal of Federal procurement. And it provided an emphasis on negotiation-style competition rather than sealed bidding; prior to this period, most federal procurement was focused on sealed bids, which were opened at one point, and the low bidder was awarded the contract. Since then, we have all moved into a world very much characterized by negotiations, substantive proposals that are evaluated, best value award, and those considerations largely originate from the principles laid down by the Competition in Contracting Act. The other thing the Competition in Contracting Act did was it provided statutory authority for the GAO to conduct bid protests for the first time. It is kind of an interesting story -- I was a history major in college, so I like to look back at the history of these types of things. Actually GAO had been hearing bid protests since the 1920's back when it was the General Accounting Office. Some disappointed contractors began writing to GAO complaining that government agencies had improperly awarded contracts to opposing companies, and GAO sort of took it upon itself and its responsibility to see that the appropriated funds were spent correctly because GAO has that function of overseeing appropriations, and decided that that authority provided it the authority to review the awards of contracts, and it expanded from there to the situation where they would issue written decisions. That is part of the reason why GAO does not actually -- can't actually order Federal agencies to do anything. GAO is an arm of Congress, so it can only make recommendations, but of course most agencies tend to follow that recommendation, because otherwise they have to report to Congress that they're not following what the GAO told them to do, which is not what most agency leaders are interested in doing. The other thing I want to highlight is the last bullet on this slide, sort of the policy underlying this whole process and the emphasis on competition and openness. There are certain values that this emphasis is designed to bring about for Federal government contracting. Values of transparency, economy, and the spending of Federal dollars, and integrity in the process, and the reason this is important is throughout the world, one of the major problems facing many countries is corruption, basic bread and butter corruption whether it is citizens having to pay bribes to officials for services or, significantly for our situation, the allocation of government dollars and government services and government resources to insiders and cronies and people who basically are stealing resources that belong to the entire country, and that is a problem that affects many countries around the entire world, and when I described to people who are not lawyers or not working for the Federal government what it is I do, I tell them that we have this entire body of law and regulation and precedent and procedure that is entirely designed to ensure that our process is not corrupt --
JH: And is fair.
NG: And is above reproach because that lack of, that type of corruption eats away at society because it undermines peoples trust in their own government, and we had this whole procedure that everything you out there as contracting staff and we as attorneys is involved in, and even the contractors themselves and their attorneys, is a process designed to ensure and reassure citizens that government money is being spent wisely, openly, transparently, and with integrity, so it can seem like a very bureaucratic process. Awarding contracts, you are just checking a box and dotting an "i" and crossing a "t", but the purpose is to promote integrity and transparency for government services and prevent corruption, and I think that is very important and something I try to emphasize to contracting staff when I tell them why we have to go through all of these processes that we do.
JH: And say to not have rules for the sake of having rules. There is rationale behind it.
NG: Absolutely. And the things we will talk about in more specific are situations where mostly inadvertently agencies have done something that undermines one of these values. I think in all cases it is inadvertent. I think there is very little situations where contracting staff are doing something deliberately inappropriately.
JH: Right.
NG: But the rules can get complicated, so that is why we are having this presentation. Moving onto the basic principles for surviving a GAO protest. I will go over these few bullet points briefly. A number of them we will talk about in depth during the course of this presentation. As you can see here, GAO will generally only sustain a protest where an agency has -- failed to comply with the FAR or other legal authority. You have to comply with the regulation or law. Fails to follow the solicitation, and we will talk about that one in depth. Has no basic -- rational basis for its evaluation. Fails to treat offers equally, and we will talk about that one more in depth. Fails to adequately document the procurement. That is another subject of great importance. And fails to mitigate or recognize a conflict of interest. That can come up in a number of ways. You probably heard about organizational conflict of interest. I don't think we will get into that one specifically in depth. It is quite a complicated area, and a lot of rules about that, we can certainly entertain some questions that anyone might have about those. And I will just go over briefly the basic standard of review that GAO applies to its bid protests, because it is important to understand the standard of review, but it is also important to have a depth of understanding of what it means.
JH: Right.
NG: As a basic matter, GAO says -- "The evaluation of an offeror's proposal is a matter within the agency's discretion. A protester mere disagreement with the agency's judgment in its determination of the relative merit of competing proposals does not establish that the evaluation was unreasonable. While we will not substitute our judgment for that of the agency, we will question the agency's conclusions where they are inconsistent with the solicitation criteria and applicable procurement statutes and regulations, undocumented, or not reasonably based". My experience often times contracting staff tend to focus on the first two sentences of this standard, that the evaluation is a matter within the agency's discretion, and GAO will not entertain a protester's mere disagreement. I frequently see instances where contracting staff basically have the view that if they are exercising discretion in an award and a disappointed contractor disagrees with that, well, they are just "crying over spilled milk" as you will. The standard is a bit deeper than that in that GAO will take a look at what you have done and will second-guess what you have done and will examine your conclusions and ask the agency -- "what was the basis for that conclusion"? And "please explain". And if there is not an obvious answer for what you have done, GAO may have a hearing, and call you to testify, and say -- "Please explain to me what you have done". At that point, it is insufficient to simply say, "Well, we have the discretion to make these decisions". You have to have a rational basis for the conclusions you have reached, and if you find yourself in a situation where you cannot come up with a rational basis for the conclusion you have reached, again, that is probably a situation where, and Jenny, you may want to weigh in here, you should think about taking corrective action again.
JH: I agree. Also on that point, I have seen confusion in terms of what is GAO's role, just in the contracting community, and I think it's important to know that GAO will look at the process and determine whether the government has acted reasonably. They are not going to review what you did and say "you should have awarded to offeror A instead of offeror B". They will instead look at the process and make a recommendation. Maybe the recommendation will be to republish the RFP, it might be to do a re-evaluation, it could be a million things, but the point is GAO is not going to tell you who should have won the contract. They're going to look at the process.
NG: Absolutely. I was in private practice for a number of years before joining the government, and I represented protesters challenging government action. There was a classic example involving a military vehicle where it basically came down to tires versus tracks on a personnel carrier, and GAO specifically said, "We are not going to decide whether tires versus tracks is a better idea. That is not going to be our decision, but we will decide whether when you evaluated the proposals you did so in a fair and reasonable manner", so if you find yourself with a tires versus tracks comparison, you are probably OK, --
JH: As long as it is documented in the record, right?
NG: Exactly. Things we will talk about. But that is the basic standard that GAO applies.
JH: Next we're going to talk about pre-award steps, and while our main focus is going to be on post-award, pre-award steps is obviously important. You all know this already, but it is well established that the government benefits from knowing industry capabilities, and industry benefits from knowing the government's needs. So we encourage early vendor engagement and that can be a variety of things from conducting good market research, drafting the RFP's, RFI's, to get all the information out there. The only thing you don't want to do is create an unfair competitive advantage when you are doing this, so if you're going to share information with one offeror, you want to share it with everybody. Also, when we really want you to get started on developing the requirements early. You do not want to be in a situation, and it is going to feel very early when you are doing a requirements development for a follow-on contract or even a new effort, but we don't want you to be in a position where you are trying to develop requirements too late in the game, you award it too late, and then you are in a situation where your contract is expiring, you are in the middle of a protest, and you are trying to award a bridge contract or someone like that. That is something we want you to keep in mind as well. And really requirements definition is the key. You do not want your timeline -- I know everyone is under really tight timelines and deadlines, but you do not want the timeline to drag the process and for you to issue or release a sloppy RFP with unclear requirements because that will just cause you headaches down the line. When you're reviewing the RFP, you want to look at everything, but really look at sections L, which are the instructions to offerors, and M, which have the evaluation criteria. When you look at that, you really want to look at, here are just a few questions on the slide, but you know, is it clear what the agency wants from offerors? Do L and M track together? Are you soliciting the right information from offerors, and are you evaluating that information? Do the evaluation factors or sub-factors really represent true discriminators? Can the evaluators, when you are actually in that situation, can they distinguish between the different ratings that they have awarded based on sub factors or factors on the offeror's proposal? I know we are hounding this point, but if you get a pre-award protest, we really urge you to use that as an opportunity instead of just reacting defensively to say "OK, let me relook at the solicitation, let me look at what we have done so far" and make sure that you have acted reasonably and documented everything.
NG: Yeah, I would just echo that point. We are not going to talk too much in depth about pre-award protests for that very reason, that you should take pre-award protests as an opportunity to ensure that your requirements and solicitation is completely reasonable and provides for a good competition and is not -- react not defensively, but not feel like you are being challenged in some improper way, but utilize that because it will pay benefits down the line.
JH: Right. And one more point on this in terms of requirements development. If you're going to issue a new effort or a large contract, we obviously know you cannot do this with every task order you issue, but if you can get everybody around the table and a lot of agencies have had success with this, when you're trying to develop the actual requirements, and have everyone from contracting, acquisition people to the lawyers, the program office, to anyone who is a stakeholder in the effort to really develop those requirements together and make sure you are dotting all of your "i"'s and crossing your "t"'s.
NG: Absolutely. Not to plug lawyers too much, but the examples have been the best in terms of my providing legal counsel to a procurement have been where I have been involved early on in the process.
JH: Absolutely. Get your lawyers involved in the beginning.
NG: And what that does is it helps all the way through the procurement process including through protests because if I have been involved in a procurement from drafting solicitation through evaluating proposals to making the award, that if we get a protest coming in, I have confidence that everything has been done --
JH: And you can defend it.
NG: Exactly, and I can put together a response and I can defend that protest with confidence, but if you come to me after the award has been made and after a protest has been filed --
JH: Which does happen.
NG: That happens with some frequency. Then it puts us in a bind, and we all have to scramble, we have to scramble as lawyers, you will have to scramble as contracting staff to get what we need. As Jenny said, it is difficult sometimes because there are so many procurements going on. We are all busy. And perhaps not every small task order this would apply, but anything significant from a program or a new development or whatever, get people involved as early as possible.
JH: And having a lawyer reviewing your documents for a day early in the process is going to feel like an impediment, but it will save you down the line when maybe the train needs to be turned around or whatnot.
NG: Absolutely. I will go ahead and add another point around requirements definition. The lawyers can review the requirements definition piece as well. Just to add on that, in my experience, requirements definition is one of the major things that can cause hiccups down the road. If you read stories the "Washington Post" or see on the nightly news about some contract that has been going on for 10 years, billions of dollars over budget, not to name any names, but I bet if you look at that situation, the fundamental problem will turn out to be that the agency did not define its requirements properly in advance, so after they awarded the contract, they have to change -- they end up changing things, which causes delays and expense and ultimately does not get the agency what it needs. I would just echo your point on that 110%.
Now we will go through several topics in some detail that are the topics we think are the most important during the course of a procurement for you to act in a reasonable and appropriate manner. We have titled these "Key Principles for Your Source Selection". Number one is "follow the solicitation". Number two is "treat all offerors equally". Number three is "document the record". I will begin with key principle -- follow the solicitation. And in my experience, following the solicitation is probably the number one thing you can do during the course of a procurement. Failure to follow the solicitation in some manners is what leads to other problems such as failing to document the record or failure to treat the offerors equally, whereas if you follow it, do what you say you are going to do in your solicitation, you are much more likely to act appropriately in all circumstances as we will discuss.
JH: Right.
NG: And following the solicitation can mean several things, as described in this chart. It means following the evaluation scheme. You establish an evaluation methodology and scheme in your solicitation, and you apply that accurately to all offerors, weigh the importance of the factors stated, evaluate price in the manner described, and utilize the stated basis for award -- best value or low price. These days, best value is very much in vogue. I had a recent example where I was talking to some contracting staff and they actually decided to go with a low price technically acceptable award, but they kept saying that they were going to do low-price technically acceptable in order to achieve best value, and I kept asking them, "why are you saying that when you are doing a low-price, not best value?", and it is a little confusing, but best value had become so ingrained in their brains as the main thing to do that it took a little bit of discussion with them to see the little problem with that, but we worked it out fortunately because they came and talked to their lawyers in advance.
JH: Right, there you go.
NG: The other important thing about following the solicitation, which is noted in this slide, is that GAO will not consider challenges to the terms of a solicitation after the final proposal is submitted. This is very important, because once the proposal is submitted, the solicitation is fixed, and you're stuck with it, and the contractors are stuck with it, too. There are certainly circumstances where GAO will entertain a protest and seem to say that something the agency was doing was not quite correct, but it was what they said they were going to do, and it is too late for the protester to challenge at that point.
JH: Out of fairness, we talk about the Federal procurement principle of fairness, but it is only fair to the government to have a cut off, and when a cutoff time is is when proposals are received, so an offeror could not come in after the fact and say, "Hey, you need to change your solicitation" when you have already taken 20 steps forward with that solicitation.
NG: Absolutely. And this role has also been adopted in the Court of Federal claims. I believe it is now enforcing this rule as well that pre-solicitation protests have to be brought prior to proposals being due. It is very important to get your solicitation established, receive your proposals and go from there.
JH: And this point also reinforces the need for good solicitation development, which is what we just talked about, just another reason why you want to get whatever is fixed in stone to be what you want and what will benefit the government and the end-users.
NG: Absolutely. The next slide is a basic statement of GAO's rule in terms of evaluating challenges to an agency's compliance with a solicitation. It states that agencies are required to evaluate proposals based solely on the factors identified in the solicitation and must adequately document the basis of their evaluation conclusions. Although we will not substitute our judgment for that of the agency, we will question the agency's conclusions where they are inconsistent with the solicitation criteria, undocumented, or not reasonably based. Again, if you are a contracting officer or have had any training in procurement, you understand the need to follow solicitation, but what does that mean in actual practice? Where can you run into problems? We will talk about a few cases from GAO examining this topic. The first one is a protest brought by Raytheon, a big contractor. It was a protest brought against an award by the Patent and Trademark Office, which was a contract for software integration services, which is a common IT type procurement that all agencies are engaged in. The solicitation established that experienced past performance and sample tasks were non-price factors, and all of these factors would be more important than price, so it was basically a best value type scheme, and it defined the experience factor as described in the slide, which is the government is seeking five reference contracts for the offeror, and the government expects to see contract references that collectively demonstrate experience in the following areas, and then the solicitation listed six separate areas under this provision, including things like program management support, software development, etc., etc., those types of things. Raytheon submitted the required five contract references under the experience factor, but with assessed with a number of weaknesses, 31 weaknesses, as you can see on this slide. Raytheon argued in its protest that these weaknesses resulted from the fact that the agency had failed to follow the solicitation correctly because what the agency had done was assessed weaknesses because Raytheon did not -- each of Raytheon's experienced references did not include specific experience in all six areas identified in the solicitation, so the agency was interpreting the solicitation to say "each one of your five references has to have individual experience in all six of these software management, software development type experiences". Raytheon challenged that and said "that is not what the solicitation required because in fact, the solicitation said that the experience has to be collectively, the five experiences have to collectively demonstrate experiences in all these areas". The specific language was "collectively demonstrate," so they protested that and said "you, agency, did not follow the solicitation". The agency responded by arguing to GAO that section C in the Statement of Work said that all of these six program areas would be required for performance, and the language about proposals having to demonstrate experience, that all of that indicated that the collective, that each experience reference had to collectively demonstrate all six experiences, but GAO said that is just not what the solicitation says. The solicitation says you have to have five experiences that collectively demonstrate your experience with these six issues, and if you translate, take the agency's interpretation, it takes the word "collectively" and changes into "individually", and we will not do that because you said "collectively" in your solicitation. So the lesson here is words have meaning, and GAO is going to apply the meaning of the word you actually use in your solicitation.
Our second case study is from Exelis Systems protest. This is an example where an agency can fail to follow the solicitation by applying an evaluation criterion that is not stated in the solicitation, and this was a protest brought against a State Department procurement, and it was a State Department contract for operations and maintenance supports at the State Department facilities in Iraq, specifically the Baghdad embassy, they needed a contractor to provide operation support for the Baghdad embassy. Here is what they said in the solicitation. The government will use past performance information to assess the capability of the offeror, and it goes onto to say, in determining the relevance of the information, consideration will be given to the similarity of the services performed in hostile, remote locations, etc., etc. Exelis Systems submitted a proposal that included past performance information, demonstrating its experience, but the State Department specifically assigned them a number of weaknesses, all of which were related to the fact that they did not propose or submit experience directly with contracting, with experience contracting with the Department of State, and there are a number of references in evaluation documents by the State Department evaluators indicating that they thought it was very important that offers have State Department experience rather than just generic experience. And Exelis Systems protested that and said there was nothing in the solicitation saying that we had to have specifically State Department experience. We just had to have experience doing operations and maintenance support in these hostile environments as defined by the solicitation, and so they protested on that basis, and again the GAO agreed with the protester by looking at the language of the solicitation. Essentially the GAO said the RFP did not contain a requirement for the offeror to have State Department experience specifically. Basically what it comes down to -- again, this is sort of a requirements definition issue, which is if the State Department really felt like it was important for a contractor to have specific experience interacting with the State Department --
JH: They needed to put that in the solicitation.
NG: Right, they could have said that, and then they could have gone on with the evaluation, but the fact is they just said "experience in these hostile environments with these types of circumstances", and when an offeror submitted past performance that demonstrated that experience, you have to evaluate that fairly and cannot impose a new requirement at that point, which is "oh, you have to have experience with the State Department", so again this is an example where the agency failed to follow the solicitation by imposing that new requirement.
JH: Right.
NG: Our final case study on this issue is a protest by Portuguese company, Esegur-Empresa de Seguranca -- that is not very good. That is my bad. This is a protest by I think the Air Force, and it was actually in Portugal, it was a Portuguese company, that is actually a note -- sometimes it is interesting with these protests, I've been on some of these, because we do contracting all over the world, but GAO has this forum, you frequently get protests from all over the world from interesting companies and interesting clients. They all come to Washington, D.C. to GAO to hash out their protests, so it is interesting that it gets an interesting wrinkle on it sometimes. This was a procurement by the Air Force by security guard services in an Air Force facility in Portugal, and the solicitation included a statement that -- as it says here on the slide -- unrealistically high, low, or unbalanced prices may serve as a basis for rejection of the proposal. The protester protested the award to another company and argued that the agency had failed to do a realism evaluation of the awardee's pricing and said that that was required by the solicitation. Interestingly, the Air Force looked at this provision and admitted that they did not do a realism evaluation of pricing. What they argue was that the use of the word, of the term "may serve" in the solicitation provided them the discretion to do a realism evaluation or not. They were trying to get one over on GAO, a little bit too "cute" on that because GAO looked at that and said no, no, no, what the solicitation says is if you find unrealistic pricing, it may serve as the basis for rejection, but by using the term "unrealistically high, low, or unbalanced pricing", you are saying you are going to do an assessment for realism, you are going to determine whether the prices are unrealistically high or low or unbalanced, and then if you make that determination, then you may , that may serve as a basis to reject an offer. That is not what you did in this case. You just did not do that analysis to begin with, and so that was where you failed to follow the solicitation to begin with. So the solicitation put in that you would do an assessment for realism, you failed to do that, agency, therefore we are going to sustain the basis. Here is the language indicating that. The solicitation contemplated a price realism evaluation of the award, and the agency just failed to do that. Again, if the agency felt like they did not need to do a realism because we are not getting into too much about the pricing, but the price reasonableness analysis, price realism, there's const realism, talk to your lawyer about that. But if the agency felt like they did not need to do a realism analysis, which can be acceptable, then they should not have put into the solicitation to begin with. Again, this is an example of once you put that word into the solicitation, you will be held to it.
JH: Words do matter, and I actually used this case recently when I was defending a protest and figuring out what we needed to do because we had the same language in there, and we did not intend to do a price realism analysis. We wanted to do price reasonableness, but because this came out and this is how GAO viewed it, you had to decide OK, you know, do we take corrective action, or, you know, what to do.
NG: Absolutely, and you are right, that is the type of situation where -- a lot of the language gets put in the solicitation. I will admit even as a lawyer when I review --
JH: You do not always pick up on every little thing.
NG: It is difficult to pick out every little thing that might potentially be an issue. That is just the reality of the situation.
JH: That is true.
NG: The important thing is when you get a challenge, do you make a reasonable assessment of the situation and make a determination about how to go forward from that point that serves to benefit? It is in nobody's benefit, just to reiterate this point, it is in no one's benefit to lose a protest because if you lose a protest, then --
JH: You are back to square one.
NG: Exactly. You have to start over from there, so if you feel like you are going to lose a protest, you might as well do something about it from the beginning. And when protesters point out situations where an agency has failed to follow the solicitation, that is a very good time to take a realistic assessment of the situation and make your determination moving forward.
JH: Right. So Nate just talked to you about our first principle, follow the solicitation, do what you said you're going to do, so I will talk about the second principle, which is treat all offerors fairly. Treating all offerors fairly as a fundamental Federal procurement principle, and really that means you need to evaluate consistently among all offerors, so if you give a strength for one offeror for having a feature that another offeror has, you will need to get the other offeror that same strength. Similarly, if an offeror has a deficiency, you want to give another offeror who has a same deficiency when evaluating proposals.
NG: I will just emphasize the notion of fairness, Jenny. Fairness is a vague concept that is hard to define in the law, but in my experience, it really forms the basis a lot of times of GAO's look at things. If the protester can convince GAO that there was something unfair about how they were treated, they can -- that can go a long way to getting them to a successful protest. I mean, they have to have some actual backup for that a little bit, but if they can just convince that point, it is sort of a litigation technique, find the story and convince the judge, or in this case a GAO attorney, that your story is correct. A lot of times that comes down to -- we were treated unfairly by the government. So you need to do something about it.
JH: Right. So we're going to go through this similar to how Nate just went through the previous section. We will talk about a case, give you a little background on what the case is about, how many proposals were received, what GAO held, and a tip to take away when you are doing procurements at your agency. The first case is a Raytheon case in 2011, and this was an RFP for best value basis to provide management, supervision, labor, facilities, and materials to deliver foreign law enforcement training to foreign agencies and nationals. They received 10 submitted proposals and seven were in the competitive range and reviewed. GAO sustained this protest where the government treated offerors unequally and how they did that was they assigned a strength to the awardee's proposal, and they did not assign a strength for a comparable feature to the protester's proposal. This sounds basic, but the tip and a take away from this is you want to give like credit for strengths across all offeror's proposals, and you want to consistently evaluate the evaluation features of the offerors' proposals under the correct evaluation factor. This case also brought in Nate's point about following the solicitation is that they -- in this case, there was a key personnel factor, and instead of evaluating under the correct evaluation factor that they said they were going to evaluate it under, they gave the awardee a strength under another evaluation factor for the key personnel. A good tip on this is do not let the proposals misguide you. A lot of vendors will submit proposals and sprinkle in their information all throughout, and just because they talk about key personnel under what you would normally assume is subfactor three and subfactor four would say, you can only give them credit for key personnel under the sub factor or factor you said you were going to evaluate key personnel under. It sounds basic, but when you are actually going through the evaluation, that can become tricky because of how the proposals are sometimes structured and the information is presented.
NG: I will go ahead and jump in. That is a great point. The trickiness is again your evaluators do not think they are doing anything wrong. They're just evaluating the proposal, marking down what they think are strengths, and only later on when the protestor files a protest and says "Hey, you did this, you gave them a strength here and you should not have done that", then you are stuck in a situation where you have to decide what it is you get married to that. Again, it does not come from maliciousness on anybody's part. They think they are doing the correct thing, but maybe because of some tricky thing, something maybe the contractor did themselves, you find yourself in a tricky situation.
JH: That is true. Now, our next case study is modular communication systems, this was a case from 1991 where the forest service was procuring multiline, multiposition radios for an interagency fire center. They received two proposals, evaluated both, and a material specification in the RFP said the offeror had to have separate volume controls on these radios, and the awardee did not have separate volume controls, and when they had communications or clarifications with the awardee, before it was an awardee, they said we do not even need those separate volume controls because we have an automatic system that controls the volume, and GAO looked at that and said wait a second, you did not meet the material requirements of the solicitation, and said that they were lax for one offeror and not the other, so go back and re-evaluate, and so the take away from this is that you do not want to relax material specifications for one offeror and not the other. You do not want to relax them for anybody. What you want to do is follow the solicitation, which is back to point 1, and evaluate fairly among all offerors.
The next case is SRA international, and this is from 2013. This was a best value procurement for coaching and organizational development services. They received 10 proposals and nine were in the competitive range, and in this case, the protester got a significant weakness for organizational strategic planning, and the awardee had a similar or equally significant weakness in its proposal, and the agency did not assign it a weakness for that, and this is a little bit different than what we were talking about before. This is the distinction Nate was talking about. It was not the same weakness in both proposals, but it was an equally serious weakness. Obviously that is up to the agency's discretion in how you define a weakness and what the proposals actually have, but if it is a equal weakness and you do not assign a weakness for that in the offerors' proposals, you will be in a tough spot and you will not be treating all offerors fairly.
NG: Absolutely. As I said before, I was in private practice for a number of years doing bid protests on behalf of contractors, and that is what we would do when we would file a protest and we would get the agency report, as a junior attorney, it was my job to sit there and go through the binders of the agency report, and I would go through and try to pinpoint every strength they gave to the awardee, if we were protesting, and compare that to what our client had offered and see if there was an inconsistency there. That is what you would do, and that usually formed the basis of our comments saying we were treated in an unequal manner. That is what protesters are going to do. Someone is going to look at that.
JH: Right, and the tip and the take away from this is similar failures to demonstrate compliance with the solicitation requirement should be applied consistently and equally among all offerors when you are doing an evaluation.
NG: Absolutely.
JH: Our next case is CitiWest Properties. This is a 1997 case, and was a total small business set-aside for a real estate manager asset manager services for single-family properties owned or operated in the custody of HUD. They received 12 proposals and five were in the competitive range. In this instance, the protester was given the opportunity to revise its proposal but was not told of any significant deficiencies or weaknesses. The other offeror, the awardee, was given information about the significant weaknesses and deficiencies and had a opportunity to revise the proposal. In this case, you did not treat all offerors equally because even though all offerors were allowed to revise their proposals, they were not all given their own significant weaknesses and deficiencies, and GAO found there were unequal discussions and they did not have meaningful discussions, so the take away here is not only to treat all offerors equally, but if you are going to conduct discussions with one offeror, you need to conduct them with all offerors, and that does not just mean give the offerors the opportunity to submit and revise proposals, that means telling them their weaknesses, and also any adverse past performance to which the offeror has not had an opportunity to respond. We will not get into past performance in-depth, but that is another point that needs to be done during discussions.
NG: And we are going to talk about discussions versus clarifications a little bit later. I would just add on the unequal treatment point that in my experience, sometimes this can result from the fact that in some circumstances, proposals are very similar, and it can be difficult for agencies to actually draw meaningful distinctions between proposals.
JH: And that is true.
NG: I remember again when I was in private practice, we had a procurement for an online reservation system, and our client was actually the incumbent, and there was another company trying to propose for that, and we actually went through two protests that were successful. It was a long procurement. By the time we got the last one, the proposals were very similar, the contractors had been through this process, so they sort of knew what the agency was looking for, and one of the factors was a marketing plan where the contractor would go out and market this online reservation system for the government, and what the agency ended up doing -- and this came out during a hearing of GAO with the CO on the stand testifying what she did what she said "oh, well we went out and looked on the web and found marketing materials from the awardee and were convinced that their marketing plan was really good", and the GAO attorney looked at her and said "well, what did you do for the protester?"
JH: Nothing. -she said we did not do anything.
JH: And it was well-meaning. The Contracting Officer did not do it on purpose --
NG: She should have known, she probably should have known that was not the greatest thing to do, but the whole point was they were trying to find some meaningful way of distinguishing between the proposals, and it just can be difficult sometimes, but it has to be done, and it has to be a reasonable basis or else you will run into problems.
JH: That even goes back to the requirements development piece. You want to specify what exactly you need and what you want to see so that the offerors give that to you on the proposals. And you don't have to look outside the proposals to find that information and to make meaningful differences.
NG: The other thing to keep in mind is that this was in a best value context. In best value, again, agencies are very much focused on getting the best proposal. Frequently, we say the substantive evaluation factors are more important than price, and we want the best proposal, so they are struggling to figure out which one is the best proposal. Always remember if they become very equal, then you just pick on price.
JH: Right. If they are essentially equal.
NG: Right, then you should just go on price, but I sometimes find that contracting staff have a little trouble making that switch. From going from we are evaluating substantively to now we are going to make an award on price, even though they can do that in best value.
JH: They can. Right.
NG: That is something to keep in mind as well. Now we are going to talk about our third substantive topic, and that is documenting the record. As I am sure many of you are aware of, the Federal Acquisition Regulation provides numerous instances of the requirement for you to document the record in various ways. As you can see, there is the basic documenting the contract file for all contracting staff. There are specific documenting requirements for schedule orders, for simplified acquisitions, and then there are numerous documentation provisions within part 15 for competitive negotiations, which is the primary place where you will be evaluated at GAO protests. These provisions specifically provide that you have to document strengths, deficiencies, and significant weaknesses, that you have to document the oral presentations during procurement, and that you have to document the price negotiation. That is obviously very important because price is a very important factor in Federal government procurements, so it is important to document that correctly. Ultimately, the source selection decision, all negotiated procurements eventually lead up to a document or they should lead up to a document that is essentially a source selection decision. Sometimes that is encompassed within the price negotiation memorandum or some other way of that.
JH: Sometimes it is a standalone document, too.
NG: Depending on the size of the procurement, the Authority official can be a higher up person, in DoD it could be a general or admiral, it could be brought in to be the source selection official. In whatever capacity you do that, you have to document it with the conclusions, the reasoning for the award decisions you have made. As a general matter, that is described in FAR 15.308, which says the source selection decision shall be documented, and the documentation shall include the rationale for any business judgments and trade-offs made or relied on by the SSA. Although the rationale for the selection decision must be documented, that documentation need not quantify the trade-offs that led to that decision. So if you are doing a best value decision of cost trade-off with technical merit, you do not have to ascribe a particular dollar value, but you have to provide a rationale. This is why we are doing this, this is why we think this proposal is better than the other proposals. That is what you have to do. Again, with respects to documenting the record, you have to account for GAO's bid protest regulations that require agencies to produce documents reflecting their procurement in response to a protest, and there is also FAR 33 addressing protests and what documentation you might have to put together for responding to a protest, so the long and the short of it is there are a lot of places in the FAR where you have to deal with documentation. That reflects that it is an important issue, and we going to talk about it a little bit more.
JH: In terms of a tip or takeaway or strategy- sometimes we have had a lot of success with developing an agency record. Our whole focus today has been "get all your ducks in a row". Do everything pre-award so by the time of the award you're ready to go and you're not scrambling. That includes documentation, too. Obviously you'll have your documents done, but as you finalize documents, whether that's the RFP when it's posted, if its the source selection documents, the evaluation documents. As soon as they are done you could have either the attorney or contracting person or paralegal, whoever it is, start that agency record index and start numbering and stamping the documents. When that protest is filed you have all your final versions in one place. Your index is ready to go. You feel like you have a jump on the protest.
NG: Absolutely. I think that would be very beneficial in a procurement. Because in my experience the way you want a GAO protest to go is you want to only have to give the GAO a single set of documents. You don't want to have a hearing -- a supplemental. But what you want is to respond to the protest is a binder with your documents laid out that gives the GAO attorney a sense of confidence you know what you're doing. You have your ducks in a row. I feel like that's very important. That initial sort of presentation, if you can get across to the GAO attorney, look, we are an agency who know what we are doing. We are organized. We've got it down here. And all you have to do, GAO, is go through --
JH: Rule in our favor.
NG: Every document flows from the other, right. The solicitation flows to the proposals to the evaluation documents and conclusion. GAO reads it and says, "Oh yeah, the agency acted reasonably and made a reasonable decision at this point". All of that flows from having a good set of documents. Again, where you run into problems if GAO comes back and says there's something missing from these documents. There's some question you haven't answered or some piece of analysis that I don't see reflected here. Then you start to run into problems.
JH: If you have that document, you can always do a supplement document. Another point on that, we need more documents. Almost everything is electronic these days, but if you get past performance questionnaires are a good example. Sometimes that gets mailed to the contracting shop in terms of the references. You want to save all that documentation and make sure it's in a good place because you don't want to be in a situation where you're in the middle of a protest and you need documents that you don't have and you can't produce, but they were critical to the award determination.
NG: Absolutely. Something that I just actually thought of that I would emphasize, I have seen this in a number of procurements recently where there appears to be sort a desire by contracting staff to engage more of an oral presentation type back and forth with contractors. Which is an acceptable thing to do. The problem can be if your oral presentation involves discussion back and forth with the contractors, the offerors, and that is not memorialized in some way, it can open up problems down the road where the contractor will say, oh, we told the government we could do x, y, z and they didn't give us credit for that or something like that. And you don't have a record of what they actually told you. So you can't actually rebut that.
JH: If it isn't on the record it doesn't exist.
NG: Exactly. I'm not saying don't do oral presentations completely. But would I recommend them? I would probably recommend them only in limited circumstances. If so, make sure you have some way of --
JH: To document.
NG: Memorialize what happened. That's going to be considered part of the proposal. And the evaluation. So you're going to have to be able to explain that. Again it's better to explain things with documents, a record of what you did rather than having to come in and add something later on.
Here's just the basic standard from GAO for how they will review documentation in the record. I won't go through the whole thing. Again it's a lengthy paragraph. But basically the last line is probably the most important one. "Where an agency fails to provide documentation of its evaluation, it bears the risk that there may not be adequately supporting rationale in the record for us to conclude that the agencies had a reasonable basis for its evaluation, selection, and decision". That's the key thing. You want those documents to explain what you have done without having to get into a situation beyond that.
Just a couple of cases. The first one is the Supreme Foodservice protest. This was a Defense Logistics Agency contract for food service delivery in Afghanistan for bringing food service to various locations in Afghanistan. And it had a requirement that the contractor meet a 97% fill rate for deliveries. I don't exactly know what that means, but I think it means 97% food delivery services on time with what you say you're going to bring. The association established there would be a past performance evaluation, evaluating whether contractors have consistently met this requirement. The awardee was evaluated as acceptable under this past performance criterion, but the protester pointed out during the protest that the expressed language in the awardee's proposal did not indicate that they had this -- they ever met this 97% fill rate on previous contracts. Interestingly the agency responded not by saying that the protester had -- that the awardee had actually said that in their proposal. They couldn't say that because the proposal says what it says. But they argued during the protest that they relied on in-house data. The quote was, "we relied upon not only the information provided by the awardee, but also in-house government data which showed that the awardee had met this 97% fill rate". They did not provide this in-house data or explain the basis of it, but they asserted to GAO that that should be sufficient to support their rationale. Needless to say GAO did not find that sufficient and said that there was no documentation supporting the agency's reliance on this data, and because of that GAO could not assess that it was reasonable. As the GAO says in this slide, the agency is not required to retain every document generated during its evaluation, but the agency's evaluation must be sufficiently documented to allow our office to review the merits of the protest. The record here does not reflect the basis for the agency's reliance on a set of fill rates that are higher than what the awardee had in its proposal. Because there was nothing documenting the agency's conclusion on that regard, the GAO sustained the protest.
Our second case, to get to quickly, called I.A.P. World Services. The documentation requirement applies to the conclusions, the point of this case was documentation requirement applies to conclusions listed in the source selection decision as much as it does to other evaluation factors. This was a contract by the Navy for base support services. And the protester argued that the source selection decisions failed to consider its technical superiority offered by the protesters. And failed to adequately explain why the awardees supposed lower rates -- lower rated proposal should receive the award over the higher rated proposal of the protesters. Again, GAO concluded that the Navy's source selection decision failed to explain why a lower rated proposal should receive award over a higher rated proposal. Again, it's OK in certain circumstances in a best value decision to award to a lower rated proposal if you evaluate technical merit versus price. But you have to explain why you're doing that. Especially in a circumstance where there's a higher rated protester who says -- comes into GAO and says, "Our proposal was obviously the superior one. Here the government's not getting the best deal". You need to be able to have something to explain the basis for your conclusion. Here the GAO found that the agency in this case hadn't done so. As the GAO said, the record here does not evidence any meaningful consideration of the evaluated differences in the firm's offers. Rather the SSA's selection decision merely identified certain features of the awardee's proposal and stated, without explanation, that the awardee's technical proposal compared favorably to the protesters, despite those firm's higher technical ratings. Again, what was needed was some basis, rationale explaining why the lower rated proposal was still the best value overall to the government in light of the protester's superior rated proposals. Where that was not documented the GAO sustained the protest.
JH: That's a good point. Your documents can't just have conclusions in them. You have to provide that rationale and basis for those conclusions. Make sure that it's clear to the GAO attorney, it's clear to someone else who doesn't have that intimate knowledge of the procurement like you have.
NG: Absolutely. The next slide just a couple of more cases talking about the fact that a documentation requirement will apply to oral presentations and to the past performance evaluation. I won't go into those cases in too much depth. Suffice it to say that GAO applies this requirement to documentation to oral presentations as we discussed earlier. And to past performance. This is a slide I added just to make a point that's not reflected specifically by the cases, but it's something that's come up in my experience which is that experienced bid protest counsel frequently nowadays will assert a protest ground that the agency has failed to properly document the record. When really what they are challenging is a weakness for their client. What they'll say is, "The agency assessed the weakness but didn't adequately document the basis for the weakness". I have seen this come up a number of times. It's just a way for protestors to try to get another ground of protest before GAO. You shouldn't worry about this too much as long as any particular weakness or assessment that they are challenging, you have--
JH: Documented it.
NG: The rationale. Just because they -- when it really comes down to is them disagreeing.
JH: They don't think they should have a weakness.
NG: They'll say, well, we think our proposal was so great. The agency hasn't documented why they think it wasn't so great. And you say, well, that's because we gave them this weakness. I have seen that a lot, frequently recently in protests. It's something that people think they have to respond to more substantively than they do. As long as you got your ducks in a row to begin with, this is just a more of a litigation tactic than anything.
JH: Also similar to that point, a lot of times protesters' counsel will request an expansive list of documents. So they want not only your source selection decisions and evaluation documents, but all drafts, notes, everything. Just know that, no, you don't have to provide everything. You want to obviously talk to your attorney about that.
NG: That's absolutely a very good point. We probably should have had a complete slide on that. Yes, frequently protesters' counsel will ask for a whole litany of documents, drafts, notes. Etc., etc.
JH: They can't go on a fishing expedition which is what they are trying to to.
NG: The reason they do that is because the way protester's counsel brings a successful protest is giving the record and trying to pick it apart. The more documents they can get a look at from the government, the more opportunities they have to pick things apart. So they frequently ask for all this stuff. You should know as a default response they are not entitled to that stuff. You don't have to give it to them. What GAO requires is a sort of basic standard set of documents reflecting your --
JH: Final documents.
NG: Reflecting your evaluation, your procurement and evaluation up to the award decision. As an initial matter you should always just provide that. The other point to keep on -- key in on is you only have to provide documents in the agency record that are responsive to the protesters' protest.
JH: Yeah.
NG: Frequently protesters' counsel have a request for documents that they just copy and paste from every protest. You get the same standard list of documents.
JH: Or they are trying to fish to get information about another aspect; maybe they are not challenging past performance but they are asking for past performance documents. They are hoping when they receive those documents they are going to find something wrong and add that to their supplemental protest.
NG: Yes. So you and your attorneys or counsel should be aware of that. And look to the protest grounds they have actually alleged. And say "We are going to give the documents pertinent to those but not everything else under the sun". That's a very good point. The final point on documenting the record I wanted to make is, we have talked a lot about documenting the record contemporaneously with the procurement as you go, having everything good to go. Ducks in a row. But you shouldn't necessarily feel like you're limited to that. Basically I'll just talk about the standard briefly from GAO, which says "We'll generally give little or no weight to re-evaluations or judgments prepared in the heat of the adversarial process". Meaning after a protest has been filed, if you're coming in with a new explanation, probably as a contracting officer statement of facts, probably where it would come up. Trying to justify what you have done in the past, that's problematic because GAO will not listen to new rationale for how you reached a decision. But, if what you're really doing is just expanding on things that are already in the record, if there's some -- for instance a reference to your consensus discussions in the record and the contracting officer who led that discussion wants to add a bit more about how those discussions took place. We met on this date. We talked about these topics. We talked about each proposal. Something like that where all they are doing is sort of filling in some of the gaps about something that already exists, you should feel free to do that in a contracting officer statement of facts. And GAO will defer to a contracting officer statement of facts as facts that have been established unless there's some reason that the protester could point out to to challenge them. But again, it should only really be when you're expanding on things already existing rather than adding something new.
JH: That's an excellent point. You don't want to be in a situation where you haven't adequately documented the record and you're in a protest and find you have to make a lot of declarations to piece together what happened. If you're trying to clarify something that maybe wasn't clear, yes, you can do that. You have the CO statement of facts. You want to avoid a situation where you're having your technical representative draft a declaration to say why so and so got so many strengths and weaknesses when it's not documented in the record. The record should speak for itself. And that's going to be your basis to defend your protest.
NG: Absolutely. That is the basic take away of this entire discussion on this section.
JH: One more quick thing. I know we are digressing. You don't want to assume that the SSA or the GAO has the same technical knowledge. So when you have these subject matter experts and these technical evaluators that are doing the evaluation of other proposals, you want them to evaluate and state in plain language why something is a strength or weakness, not just assume that the reader will know based on the words that they use.
NG: Absolutely. That's a tricky thing. Especially for a technical evaluator. People who have been brought in to serve on evaluation panels. They know the technology that's being addressed. Or the specific whatever it is. I worked a long time on a procurement for commercial satellite services. We had people who do satellite industry and knew how these things work. I had no idea how it works. I still don't. But the point Jenifer is making, neither does the GAO attorney.
JH: The person deciding your case.
NG: It's just a government lawyer like us who might be an expert in procurement law but not an expert in --
JH: Right.
NG: It's important to try to explain things in a way that a layman can understand; that will help a lot.
JH: Definitely. Now we are going to move another important topic which we referenced earlier. This is clarifications versus discussions. We'll talk about the type of communications you have with offerors before an award decision is made. Both these are found in FAR 15.306. Clarifications are just exchanges with an offeror for the limited purpose of eliminating minor irregularity and formality or apparent mistake. The offeror does not get a chance to revise its proposal when clarification is occurring. Discussion is very different. Discussion is any oral or written communication with an offeror that involves them providing information that's going to be essential for determining whether their proposal is acceptable or met your requirements. Or gives them a chance to add something they haven't already put in their proposal. The take away for this is you need to -- the agency will look at the substance of the communications to determine whether they have had clarifications or discussions. This is an important point. A lot of times we both have seen in the past where contracting officers will label a communication with an offeror as clarification. They think because they label the document as clarification it's a clarification, but you have to know that GAO is going to look behind just the title and see what's the substance of that communication to see whether it's a clarification or discussion. We are going to go through a few examples so you can see how this plays out.
Now, that quote on the top of the slide, that's just the basic quote from this case. This is Erie Strayer, and this is actually an interesting example because within the case they went through four specific questions that the government asked the awardee and saw how the answers were answered. Based on these answers and substance of the communication is this a clarification or discussion? Just to give you a background, this was an RFQ for a mobile concrete plant at an Air Force base. They used simplified acquisition procedures, FAR 13.5. It was LPTA, the agency received eight proposals. The agency clarified, or categorized all these four questions as clarifications. But then GAO looked behind during the protest and said "Are these really clarifications or not?" We'll go through these. The first one is the agency asked "Can the generator you provided run the entire plant without having to add additional power?" You can see the response. They say "Yes, per the proposal we have done an extensive power study and the power load is x and y". They are referencing back to their proposal, clarifying the question. That was a clarification. Compare that with the second question was, "Does your company provide 24/7 technical support?" And the answer is, "Yes. We have field techs on call. Included our free upgrades and attendees out of training school". Notice they don't reference back to the proposal and they are giving additional information. So GAO said, "Yeah, this is discussions because the offeror was able to augment its proposal to clear an omission regarding a material solicitation requirement which was to provide this 24/7 technical support". The third question from the same case was, "Is the moisture compensation you proposed automatic?" They said, "Yes, per page 7 our proposal..." said what it included. They are citing back to their actual proposal and restating what they have already said. What they have already submitted to the government. Compare that with the fourth question which is, "Did you provide safe ladders and/or stairs to access the requested parts of the plant?" Notice here they say "Yes, per agency specifications, personnel can access the plant". Well, they are citing back to the agency specifications but not back to their proposal. That just shows that, yeah, these are discussions. And they aren't referencing the proposal. There is no evidence in the record that said that they offered these ladders or stairs. It shows that you want to make sure you're cautious in terms of what -- the agency classified all these four questions as clarifications, but you want to make sure if you're having clarifications, you're having clarifications. If you're having discussions have them with all offerors.
NG: I just jump in. I think this is a great case for providing an illustration of the distinction. I get this all the time from contracting staff who want to ask some question and they come to me and say, "Can we ask this question? We are unclear about something in the proposal. Is it a discussion, clarification?" You have to -- I have to look at the question and see what is it they are asking? What is it they hope to get back from the offeror?
JH: And what has the offeror already provided?
NG: This is a very good case illustrating the difference: are they referencing the proposal or adding something new?
JH: Now, here are some additional examples of what are discussions, what are not discussions. By no means is this list exhaustive. It provides more examples for your review. GAO found that these were discussions which is letting somebody substitute their resumes for key personnel. That was part of the solicitation. I'm letting an offeror switch out resumes after the fact. After the proposal is submitted, but they didn't let everybody do that. That's a problem. Also, allowing an offeror to explain a material solicitation term that, after the offeror explained it, it resulted in a revision to its proposal. And that impacted the award decision. Those two were discussions. What were not found to be discussions is whether figures that were provided were based on annual or monthly figures. Whether -- also they said responsibility inquiries. Those were not discussions. Those are clarifications.
NG: I would jump in here an add another point about the discussions versus clarifications. A lot of times contracting staff seem very reluctant to want to do discussions.
JH: They would be holding up the process. They want an award.
NG: People are under time pressures. We understand that. There's a tendency for procurements to sort of lag a little bit and run up to deadlines. And there's a desire to not have to engage -- to postpone things by getting new proposals.
JH: Should come with discussions.
NG: And pushing the evaluation down the road. Just keep in mind ultimately what we are trying to get is the best value, best deal for the government. To make sure that the government's need is met in the best way possible, the most economical way possible. If you're finding during the course of your evaluation that there are questions that you have, that you're coming to your lawyers and saying "Can we ask these questions?", probably something reasonably important, it is better to just go ahead and try to get those addressed. Ultimately it will save you time. It will ultimately save you effort, time, effort, and expense when you award a contract. And you have everything figured out at that point rather than after you have awarded the contract and realizing that "Oh, there was some issue that we didn't quite realize. But we went ahead and made an award". Now it's reared its head and we have to deal with it now. It really is better to try to address these things in advance no matter how much pressure everyone -- we are all under.
JH: You don't want to be in a situation when you have awarded a contract and you have to do a modification where either, a, the government's going to pay a lot more for it, or b, where it's an out-of-scope modification and you might have other problems.
NG: Absolutely.
JH: Next we want to talk about another key factor in terms of source selection and this is debriefings. Debriefings can occur pre-award and post award. We are going to focus most of our conversations on post award and debriefings. So the authority comes from FAR 15.505 and 506. It's an opportunity for you, the government, to tell an offeror why they were unsuccessful. You want to point out significant weaknesses and deficiencies. The point is so that they can improve their proposals the next time they are interacting with the government or submitting proposals for future efforts. In terms of mechanics, a post-award debriefing needs to be requested within three days of the point that the offeror receives notice that they were unsuccessful. To the maximum extent practical, the agency has to do -- conduct the debriefing within five days.
NG: The importance of the three-day requirement is that it's required debriefing and you have a stay of performance if contract award kicks in at that point. If a disappointed offeror gets that request within three days, a stay might be in place. If it's after, you may not have to do a stay. Talk to your lawyer about that.
JH: More mechanics about what's included, what's not included. Post-award debriefings should include deficiencies and significant weaknesses. We talked about that. The ratings of the debriefed offeror and the awardee. And the summary for the rationale for the award decision. If it's a commercial item contract, you need to include the make and model. And also it says reasonable responses to relevant questions that are asked. You should not include a point by point comparison with any other offerors. And you also can't include information that's prohibited from disclosure. It's kind of interesting. I know a lot of agencies do or conduct debriefings in many different ways. I know some do oral. Some do written. There's advantages to both. But actually NASA's one agency that conducts oral debriefings in person. They vet their source selection statements and provide it to all their offerors. And they sit in a room and provide their technical chairs and the source selection authority or someone at a high level around the table to answer questions from the unsuccessful offeror. They said they have been told that's helped to de-mystify the process and to provide a lot of good information. Putting my lawyer hat on, you want to be careful because you don't want -- I have had instances where, not saying this is not a good strategy because it's proven to work well for them, but there's been instances where I have had post-award debriefings in person and we've had a protest filed and the majority -- 75% of the protests filed is based on information said in debriefings. So you just want to make sure that you -- you're controlling what's said. You're giving them as much information as possible so they can make a better decision or more informed decision next time. They know why they didn't get the award. It wasn't just selected at random.
NG: I would echo your point. Perhaps a procedure like NASA's might be useful if it could be expanded governmentwide, but until that day, yes, I think it's a tricky thing with oral debriefings when there's not a record of what's being said. Because frequently that will form the basis of a protest. And protestors will assert that you said certain things about how the evaluation was conducted during the debriefing.
JH: They may show up "lawyered up".
NG: It's very important to tell contractors to identify who they are bringing to the debriefing beforehand. Before you schedule it so you know if they are bringing their lawyers.
JH: You always want to have your lawyer involved.
NG: Sure. But you eliminate a lot if you have a written debriefing. It is perfectly acceptable.
JH: You're controlling the message.
NG: Yes. It is a single document that then people can look at and know there is no confusion about what was said. My default recommendation is written debriefings. I deal with a lot of contracting staff who would like to have oral debriefings, who want to talk with disappointed contractors and help them understand what happened to put them off their protest. And that probably happens in some circumstances. On the other hand, if the protester is determined to protest, they are going to protest no matter what.
JH: If you are going to do an oral debriefing, we highly encourage you to do practice dry runs. Have people come in and ask questions. You don't want the first time you're talking about this in front of people to be in front of the unsuccessful offeror. Also, it's important to know that sometimes protesters protest just to get information. If you provide as comprehensive of debriefings as possible, whether that's written or oral, you're giving them a lot of the information so they'll realize the government did do their job. And there is rational basis for the decision. Sometimes they are going to protest because they are going to protest. I know sometimes agencies have found it positive -- to give an offeror all their strengths. You're not required to. But sometimes that --
NG: You shouldn't be hesitant to give them information about their own evaluation. They are entitled to that in any event. Yeah, you shouldn't feel like you should be hesitant to give a debriefing about the particular contractor that's coming to you. I would recommend doing that stuff in writing. Everybody knows what you said.
JH: Also just one more point. It's the last bullet but it goes on to the next slide. You want to really make sure that if you're doing written debriefings there is a definite closing to the debriefings. There's been many issues which are actually illustrated nicely in this case. This was a Harris IT services corporation case. Basically it went down where the agency said, "OK, we are going to provide everyone written debriefings". Before the written debriefing the CO emailed the unsuccessful offeror and said, "Let me get you a written debriefing", because that unsuccessful offeror had already asked for no, we want it in writing -- we want it in person. And the CO said "Let me get you the written debriefing, if you have questions after that call me". I should mention before we get too far in this. It's the CO's discretion whether they want to do it in writing or person. Yes, the unsuccessful offerors can ask for it and state their preference, but it comes down to the CO's discretion in terms of what he or she would like to do. Going back to this case, they said it's going to be in writing. The offeror said, "No, we want it in person". The agency said, "Look at the written one and let me know if you have questions after you review it". Four days later they contacted the CO and said -- the CO responded and said "I don't mind a verbal debriefing". Seven days after the actual written debriefing, there was a telephone call that was held between the offeror and the CO And the CO didn't clearly say whether this call was actually an extension of the debriefings or if it was just a telephone call. Because it was unclear, GAO ruled in favor of the protester saying that the protest period was extended because there wasn't a clear end to the debriefings.
NG: I would just -- I'm smiling because this was my case. I was the agency counsel in this. This was on a request for dismissal that we filed with GAO. To try to get the case dismissed on the grounds they had not timely filed a protest. As you probably know or we can tell you, there are deadlines for when, generally speaking, 10 days from the date of award or date of --
JH: Five days from offeror debriefing.
NG: Exactly, five days from when a required debriefing is held for the protester to file a protest at GAO. When I got this protest it actually was one of the situations where I was not involved prior to the protest. It appeared that the protest had come far after award had been announced and we informed the disappointed contractors. So we wanted to file a request for dismissal. As Jenny said, these email exchanges between the CO and the disappointed contractor came out, in which the CO extended. I talked to the CO about this on the phone. And he was just genuinely trying to address the -
JH: To be responsive.
NG: Didn't want to seem difficult. Didn't want to draw a hard line. "No, I won't listen to anything more from you". He was very open and very trying to be accommodating about this. The net result was the constant extension of the deadline from all these different communications.
JH: Then you're on different schedules. This offeror was on a different schedule than others.
NG: Absolutely. It wasn't -- again, it wasn't out of any bad intent on the CO's part. He was trying to do his job in the way he thought best. It ultimately meant we couldn't get the protest dismissed. We won the protest in the end, but we tried to get it dismissed. It's a good example of trying to say, put some limits. Even if you have an oral debriefing or responding to question, put limits on it. All you can do is say --
JH: Debriefings are closed.
NG: This concludes the debriefing. I will conclude it here. Put that in writing to the contractor and then you have it documented.
JH: Back to documentation. And treating all offerors fairly. You're going to close debriefings for one offeror, you need to close them for everybody.
NG: Absolutely.
JH: Our final major point that we wanted to just touch on briefly. We could have a whole presentation on this topic. This is the evaluation team. Just know that GAO won't review the composition of the evaluation team, absent a showing of conflict of interest or bias. But typically this evaluation team will be the source selection authority is the person who is the person in charge of making that final decision. And the SSA is charged with approving the acquisition plan, ensuring that proposals are evaluated based on the solicitation, considering the recommendations of the advisory board. Whether you have the SSA, SSCB, however you do it in your agency. And the SSA uses his or her independent judgment to select an awardee and has to document that in the source selection decision. We really said -- say this because you want to make sure that you choose evaluators who are experts in the field, who have some subject matter knowledge or expertise in the area of whatever you're trying to procure. You want to make sure not only these evaluators and advisors in the SSA, but everyone who is a stakeholder who is involved in this, the source selection, can dedicate the required amount of time to the source selection effort. You enter one of these and you don't know whether it's going to be a month or three months. Or two weeks. You want to make sure that they have an open schedule because you don't want to be in a situation where you have evaluators that thought this was going to take two weeks. It's the end of two weeks. They have to leave for whatever reason. And then you're stuck in a tough predicament where the evaluation isn't done. They started the evaluation. You pull new evaluators. That's the spot you never want to be in. You want to make sure you make the expectations clear up front.
NG: I completely agree. Well, we have reached the end of our presentation. As you can see we've covered a number of topics in some degree of detail. Hopefully not too much for you to follow along. We have covered the importance of following the solicitation. Treating all offerors equally. Documenting the record, hopefully in a contemporaneous basis as you go. We emphasized the importance of the difference between clarification to questions and discussion questions. We emphasized debriefings and trying to bring some parameters to those. And using experts in the evaluation team. We have covered a lot of topics. I now think we would be happy to address any questions you may have. Thank you.
JA: That was a remarkable overview of protests, how to avoid them, and how to defend against them. We are going to take a short break and gather all of the questions you submitted. We'll be back in five minutes to begin answering them.
JH: Thank you so much for all of your questions. We received a lot of great questions. And really appreciate your interest in this topic. Before we get into the specific questions, we wanted to let you all know we'll be posting the video and power point slides online within the next one to two weeks so you'll have access to those on the website. To get into the first question we received, someone asked us why do contractors protest? They could protest for a number of reasons. I know we discussed this during our presentation. Sometimes they have a grievance. They feel like that the government misevaluated their proposal. Sometimes they protest because they want to gain information. They want to look inside the box to see the evaluation documents for their current and future needs they protest because they want to gain information. Also the incumbent, it's a reality that usually incumbents will protest because just by protesting they get 100 more days of work. Also we talked about this earlier is that sometimes people protest because they want a greater piece of the pie. Federal contract spending is down so they want another bite at the apple.
NG: This is Nate again, thanks for all the questions as well. I echo Jenifer's comments. Question number two we are going to address, addresses -- a question that said that some FAR changes in the last few years have made it easier to file a protest. And asked our thoughts on that. And also if any actions are being taken to address the issue of filing protests as being too easy. We talked about this. We are not aware of any specific recent FAR changes that addressed the ability of a protest to be filed from a procedural standpoint in terms of time limits or anything like that. So I'm not sure what that's referring to. In terms of the ease of filing a protest, to be frank I think the GAO protest process is actually designed to be pretty easy to be filed by a contractor. It's part of what I talked about in the transparency and openness of our procurement process is we have this protest procedure that is specifically designed to allow it to be fairly easy to happen and to have these procurements brought before the neutral arbiter of the GAO. So I don't think there's a lot in the pipeline to limit that process that I'm aware of. I would not think that's going to happen any time soon.
JH: Our third question, we received a lot of questions about the 100-day decision time frame to address in terms of GAO rendering a decision. All of the time frames we discussed, whether it's the 100 days, 10 days, five days, all of those are calendar days. If that 100th day or fifth day or 10th day falls on a weekend or holiday it rolls over to the next business day. Otherwise it's calendar days. And the second part of this question is, if an agency takes corrective action on its own, will GAO continue with the decision. The answer to that is if the agency takes corrective action they'll notify GAO and GAO will dismiss the protest. You should know that in rare instances GAO will look at the actual corrective action that's being taken.
NG: Our next question asks -- states that lately we have come across where GAO's looking at the strengths and weaknesses and has come to a decision where they felt that the strength or weakness should not stand and asks basically how GAO does this. This is a good question because it may look in a decision like GAO is basically second-guessing whether something should be a strength or weakness. What is likely to be the case is that GAO is looking at whether the agency has adequately stated a rational basis for its assessment of a strength or weakness against a company. GAO will always sort of look at whether the agency's conclusion is reasonable or rational and consistent with solicitation. So if a protester says, challenges a weakness that's been assigned to their proposal, they may say in their protest, "The agency did not adequately explain why this is a weakness", for instance. And GAO may look at the documents, your evaluation reports, and say, "Is this weakness for the protester adequately explained so that we as a third party can determine that this weakness has been, is reasonably based?". If they don't see that explanation in the documents, they may say "We, GAO, cannot determine that that weakness was appropriate". But they are not saying necessarily that they have looked at the proposal and conclude on their own that there is no weakness. They are just saying the agency hasn't adequately explained that the weakness is rational. So that's probably where this question is coming from, from a decision that was along those lines. And the other thing about weaknesses and strengths to keep in mind is the equal treatment which we talked quite a bit about, that if you're going to have a weakness for a protester or a strength for an awardee, make sure that the other offerors are similarly addressed if they are offering things that are similar in their proposals as well for that equal treatment requirement.
JH: Our next question is a great question. It talks about why do so many protests seem to be decided on grounds other than which the protester originally raised. What will happen typically is a protester will file an initial protest just to get a look, we say, "inside the box", to see the agency record, to see all the evaluation documents. GAO, what GAO looks at, we are not confined to what was filed just in the original protest. After the protester is able to look at all the documents and agency record, then they'll file a supplemental protest which will usually raise new issues or expand on the issues that were originally raised in the first protest. And a lot of times GAO decisions do turn on supplemental protest grounds.
NG: Our next question is simply stated here, which is what is the difference between LPTA, Low Price Technically Acceptable and Best Value? This is a paraphrase of a number of questions we received on this topic. It touched a nerve I guess based on things I was saying in the presentation. I can understand why that's the case given the language in the FAR and other presentations that you may have been a part of. To offer an explanation I would say this is both to some extent a matter of vocabulary but also a matter of significance. What I mean by that is I use Best Value and Low Price Technically Acceptable as different things because to me Best Value inherently means that you're assessing something beyond price. The value to the government includes both technical merit and price. Whereas low price technically acceptable is a very straightforward consideration. First, is an offeror technical acceptable? Yes or no because you're not going to award something to a contractor that's not technically acceptable. Secondly, do they have the low price? That's a very simplistic consideration. I don't mean simplistic in a bad way. I think it should be used if a lot more procurements than it is. But it is a fairly straightforward assessment. Whereas Best Value, you can call it best value, tradeoff. I use those terms interchangeably. You're assessing something beyond low price. You are assessing the value to the government overall. That's the vocabulary aspect of it. I do think, and I have seen in my experience that if you confuse these terms a little bit in GAO, you're setting yourself up potentially for problems if it becomes confusing in the solicitation what your evaluation scheme is. In terms of is it low price or is it something beyond low price that gets into value, tradeoffs, or what not? The point I'm emphasizing is, in your solicitation you should draw a bright line between these two, whether it's Best Value, whether it's tradeoff, whatever you want to call it, on the one hand and Low Price Technically Acceptable on the other hand. You don't want there to be any confusion. And -- that's why I basically use Best Value and tradeoffs interchangeably and distinguish between that and Low Priced Technically Acceptable. Like I said I understand there is confusion about this. Some of that comes from the FAR. But from an assessment point of view, that's my opinion. And I'm going to stick with that.
JH: Our next question is about debriefings. We just wanted to clarify that, in our presentation, we are not saying not to give a debrief. We recommend giving a debrief. It's timely filed, you must give a debrief. We encourage communication with vendors. A lot of vendors have voiced concerns about the government isn't communicating with them. We highly recommend you do communicate with them and keep lines of communication open. As a business matter, just considerate to sit down with vendors. Vendors do put a lot of time and money into these proposals. It's fair for the government to sit down with them and tell them why they were not selected. With that said, as lawyers we found that if a contractor is intent on protesting, they a lot of times will use the material in the debriefings in their protest. What that means is you want to make sure you have a record of what is said in the debriefings or if you have a written debriefing, you automatically have a record there. Like we talked about in the presentation that you really want to practice dry runs if you're doing in-person debriefings. You want to make sure everything is vetted with your legal counsel if you're doing written debriefings. The last question is about do -- I think they mean do vendors need an attorney to file a protest? They do not. You don't need an attorney although many times vendors will use attorneys. And they also ask whether there's a checklist that they need to follow in filing a protest? Yes there are, they have the GAO bid protest regulations which document in detail the procedure for filing a protest and also the contents of the protest. Like what's needed when you actually file one. Do you have anything else to add?
NG: I was going to add that if -- you do see a lot of times companies not using attorneys because attorneys can be expensive in private practice. But one thing to keep in mind as a government personnel is, if it's a company not -- without an attorney pro se contractor, is the way we refer to it, that means you don't have to give them the you same set of information necessarily as you might have to give an attorney. A GAO protest has a protective order procedure for counsel which allows attorneys for the protester to, for instance, get a look at all the evaluation materials and the proposals for the awardee, the other companies, and then --
JH: The contractor isn't able to see.
NG: The contractor doesn't see that directly. But if a company protests on their own, then they don't have a chance to look at that information. You can still get that information to the GAO attorney when defending your protest. Just not to the pro se company. That's one thing to keep in mind.
JA: We certainly hope you found today's seminar valuable and useful. Though bid protests can be disheartening after all of your hard work, this presentation serves as a reminder of how vital proper planning and documentation are to confronting them. Thank you once again for joining us at today's Acquisition Learning Seminar, "Strategies to Successfully Prevent and Defend Bid Protests". On behalf of the Federal Acquisition Institute, thank you.
