Lunch n LearnGAO Protests: 14 Feb 2018

• Session will start at 1230 EDT (1130 CDT) • Audio will be through DCS – sound check 30 minutes prior to the session. Everyone but

the presenters muted• Download the Presentation:

– Click on the Bold Arrow pointing downward just below the lower left hand corner of the presentation• Questions are welcome during the session - type them into the DCS Chat Window• Participants are invited to send “best practices” via DCS Chat – tell us what works for

you!

Janel Wallace, PresenterProfessor, Contract Management703-805-5244janel.wallace@dau.mil

Michael Rodgers, PresenterProfessor, Contract Management703-805-4961michael.rodgers@dau.mil

Agenda

• GAO Background Topics– Task/Delivery Order Thresholds– 809 Panel– Rand Report– EPDS

• Practitioner Issues– Justification & Approval (J&A)– Competitive Range Determinations & Meaningful Discussions– Negotiation Essentials

• Questions & Best Practices (what is working for you?)2

Background: GAO Bid Protests

• Ensure federal procurements are conducted fairly

• When bidders or others have reason to believe that a contract has been, or is about to be, awarded improperly or illegally, or that they have been unfairly denied a contract or an opportunity to compete for a contract

• First bid protest decision published by Government Accountability Office (formerly General Accounting Office) in 1926

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Background: Protest Thresholds• Task/Delivery Orders Issued by Military Agencies or

Departments– Value equal to or greater than $25 million– CICA violation

• Task/Delivery Orders Issued by Civilian Agencies or Departments– Value equal to or greater than $10 million– CICA violation

• Federal Supply Schedule Orders– Any dollar value 4

Background: 809 PanelReport of the Advisory Panel on Streamlining and Codifying Acquisition Regulations, Volume 1 of 3; January 2018

• Does a regulation:– Establish & administer appropriate buyer & seller relations in the procurement system

– Improve the functioning of the acquisition system

– Ensure the continuing financial & ethical integrity of defense procurement programs

– Protect the best interest of the DoD

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Background: 809 Panel• Sense of the Panel: protest regulations

– Even when companies have successfully navigated preaward processes, award decisions are mysterious to them

– Protests are a tool for industry to receive feedback and better understand the government’s acquisition decisions

• Costly steps should not be needed to get info on DoD’s needs and processes or to understand the end result of the acquisition process

• Acquisition system must maximize transparency to bolster & maintain trust

– Amend 10 U.S.C. to allow DoD to issue sole‐source SBIR Phase I and Phase II awards outside the master release schedule and to nonconforming proposals, not requiring a Justification and Approval (J&A), and not subject to protest

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Background: Rand ReportDirected by 2017 National Defense Authorization Act (NDAA)

• Bid protests– Agency– GAO– Court of Federal Claims

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Background: Rand Report

• Recommendations– Enhance quality of post-award debriefings– Beware reducing GAO timelines– Beware restricting task/delivery order protests at GAO– Expedited process for procurements under $100k?– Consider approaches to reduce/improve small business protests– Collect more data

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Background: Rand Report

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Background: EPDS

• Electronic Protest Docketing System – Starts “sometime” in 2018– All protesters will be required to use EPDS to file new protests

• Limited exceptions (e.g., classified)– Filing fee used to pay for operation and maintenance of EPDS

• Billing and Payment– $350 filing fee – Automatically redirected to www.pay.gov – Pay by credit card or by using a PayPal, Amazon, or Dwolla account

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Background: GAO Bid Protests FY13-17

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Top Reasons for Sustaining Protests

• Unreasonable technical evaluation

• Unreasonable past performance evaluation

• Unreasonable cost or price evaluation

• Inadequate documentation

• Flawed selection decision12

Unreasonable Technical EvaluationFY 16Deloitte Consulting, LLP (B-412125.2, B-412125.3)

– Fairness to all– Can’t increase an already established rating without new information

justifying the increased rating

FY 17CR/ZWS, LLC (B-414766, B-414766.2)

– Offeror must fully comply with requirements presented in all solicitation clauses to be technically compliant

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Unreasonable Past Performance Evaluation

FY 16Rotech Healthcare, Inc. (B-413024)

– Agency is required to consider, determine, and document similarity & relevance of an offeror’s past performance information (size, scope and complexity)

– Contemporaneous documentation is critical

FY 17MLU Servs., Inc. (B-414555.3, B-414553.6)

– Ask whether experience can predict offeror’s performance– GAO will decide in favor of protestor if there is any doubt about whether

an evaluation has been conducted properly 14

Unreasonable Cost or Price EvaluationFY 16Valor Healthcare, Inc. (B-412960, B-412960.2)

– Agency decides if it wants to include price realism language in a fixed-price solicitation

– When price realism language included, agency must conduct its evaluation consistent with that language

FY 17NCI Info. Sys., Inc. (B-412870.2)

– Agencies must clearly document whether offeror’s approach can be performed at the price proposed or whether the price is reflective of an awardee’s understanding of the requirements

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Inadequate DocumentationFY 17Threat Mgmt. Grp., LLC (B-413729)

– Be alert to contradictions & inconsistencies in documentation– GAO will look to contemporaneous ancillary documents if needed in

an effort to make it make sense– Should clearly document:

• Need & tasks to be performed/personnel skills required• How pricing is determined

– Any questions about scope caused by lack of documentation will be resolved in favor of the protestor

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Flawed Selection DecisionFY 16Castro & Company (B-412398)

– Consider all evaluations independently • Ask: why is one evaluation so low while all the others are higher?• Address differences and try to reach consensus

FY 17CALNET, Inc. (B-413386.2, B-413386.3)

– Intelligent award decisions use ratings as guides • Do not relying on ratings exclusively to provide the result

– Explain if proposals are rank ordered but deemed equivalent – Cost realism analysis requires a review of each proposed cost– Use fixed price in situations where requirements are fully defined

• Specific labor categories and staffing and level of effort is known 17

Practitioner Issues

• Competitive Range Determinations & Meaningful Discussions

• Justification and Approval

• Negotiation Essentials

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Competitive Range & Meaningful Discussions

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Competitive Range & Meaningful Discussions

• Competitive Range Determinations– Consider all evaluation factors; including cost/price

• Must include all “most highly rated” offers• May exclude offer that requires major revisions• If in doubt, leave it out

– Change from “reasonable chance” approach

– Do not use predetermined scores to establish range• Consider keeping an offer with easily correctible deficiencies

– Limits based on “efficiency” are acceptable• Offerors advised in solicitation• CO makes written determination after receipt of offers

– Do not have a competitive range of one• Not “illegal” – but come on people! 20

Competitive Range & Meaningful Discussions

• Meaningful Discussions– Discuss with 1; discuss with all

• Identify deficiencies & significant weaknesses• Don’t have to identify all; lead contractor into improvement areas• No need to “spoon feed”

– No need to have face-to-face with all• Provided no prejudice to those who do not receive face-to-face

– All offerors given chance to revise proposals after discussions• No need to reopen discussions for deficiencies in final proposal revision

– Evaluate consistent with solicitation!

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Justification and Approval

• Competition Requirements - FAR Part 6– FAR Subpart 6.3 (J&A)

– FAR 6.301 policy states executive agencies cannot contract without full and open competition unless one of the statutory exceptions listed in FAR 6.302 applies

– Agencies conducting other than full and open competition need to justify their decision & have the appropriate approvals

– Format varies according to agency; required contents in FAR 6.303-2 22

Justification and Approval

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1. Contracting Activity2. Description of Action3. Description of Supplies/Services4. Authority Cited5. Reason for Authority Cited6. Efforts to Obtain Competition7. Actions to Increase Competition

8. Market Research9. Interested Sources10. Other Facts11. Technical Certification12. Requirements Certification13. Fair & Reasonable Cost Determination14. Contracting Officer Certification

Army J&A Format http://farsite.hill.af.mil/reghtml/regs/other/afars/5153.htm#P163_19247

Negotiation Essentials• Approaches: Win/Win; Integrative v. Positional

• Pre-negotiation– Preparations; team membership/roles; ROE– Spreadsheets

• Negotiations– 1 voice– Tactics

• Post-negotiation– Follow-up– Documentation

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Questions & Best Practices

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What else?

References

Wallace, GAO Rulings in Contract Protests, Defense AT&L (Jan/Feb 2018)

Assessing Bid Protests of U.S. Department of Defense Procurements: Identifying Issues, Trends, and Drivers, Rand Report (Jan 2018)

GAO Fiscal Year 2017 Report (Nov 2017)

Bid Protests at GAO: A Descriptive Guide (2009)

26Wallace and Rodgers are lawyers and professors of contract management at DAU, Ft Belvoir.

References• Report of the Advisory Panel on Streamlining and Codifying

Acquisition Regulations; Vol 1 of 3, Jan 2018 https://section809panel.org/wp-content/uploads/2018/01/Sec809Panel_Vol1-Report_Jan18_FINAL.pdf

• Army J&A Format http://farsite.hill.af.mil/reghtml/regs/other/afars/5153.htm#P163_19247

• EPDS FAQ https://www.gao.gov/assets/690/681756.pdf27

List of Best Practices

• A list of best practices submitted by Lunch and Learn participants will be placed in the Learning Materials section of the Contracting Community of Practice– https://www.dau.mil/cop/contracting/Pages/Documents.aspx

• The list is intended to serve as a catalyst for your brainstorming and exploration at your work center

• Thanks for participating!28