Posted on 10/4/2011 9:37 AM

We've been asked to comment further on how to win protests.  Let's get really practical about this.  You have submitted your proposal and have called the contracting officer to be sure you will get the required notification of award promptly.  Notification is required, but you need to stay alert and if necessary prompt the proper response.  You get the notification and you did not win.  What next?

You need someone with considerable protest experience to guide you through the next steps.  The analysis of whether to protest is the first critical step.  The timeliness rules, discussed in another blog in more detail, also are of the utmost importance.  Asking for a debriefing is almost always smart and such a request tolls the running of the time limits on a protest.  FAR 15.506 includes a list of specific items the government must cover in the debriefing.  Insist on disclosure of all the required information.  Even if a debriefing is not required or you are told FAR Part 15 does not apply, insist nonetheless on a thorough debriefing.  Almost all competitive procurements implicate the principles set forth in FAR Part 15.

The debriefing should give you some (although usually very limited) insight into why you lost the award.  Unfortunately, agencies generally do not heed Dan Gordon's advice to be forthright, forthcoming and candid in these debriefings.  Agencies still are concerned that too much information will only lead to the inevitable protest.  Nevertheless, in our opinion, more transparency actually does avoid protests.  We have too much experience to allow our clients to waste time, money and customer relations on losing protests.

Now we go to the critical step:  the evaluation of the merits and the decision to protest.  As we have said until we are blue in the face, do not protest unless a regulation has been violated.  Here, again, you need an outside expert with extensive experience to help you with the analysis.  If you decide to protest, you must do so through an outsider who can gain access to the complete record under a protective order.  The analysis of whether a regulation has been violated is grist for the person who has been there many times before.  We've listed the relevant regulations in the prior discussion of the Anatomy of a Successful Bid Protest.

Finally, here is the secret.  The debriefing only gave you a slight hint as to what is in the record and yet it looks as if a regulation may have been violated.  What do you do?  Often, the only way to find out whether you have solid ground to protest is to protest.  An outside consultant will be able to see the entire record.  The secret is you must file a "speculative" protest that is not "too speculative".  We used to call these blind protests.  No one likes to talk too much about this.  But since agencies are not forthcoming in debriefings, contractors have to engage in a type of speculation about what actually happened.  The key is to make the protest stick, get the record for the outside consultant to examine, and then decide whether to continue the protest.  Just where is the line between acceptable speculation and too much speculation?  Frankly, only an experienced protest consultant can tell you.

We handle protests.  If you have questions, please let us know.   (540) 439-9250


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