Blog - Archive for October 2011
Posted on Friday, October 28, 2011 7:09:13 PM
Let’s take a view from outer space, an alien’s view. It’s a view of reality we often cannot see, here in the trenches. Government contracting is an adversarial system. Face it. An alien can see it. Once we do see it, perhaps we can write a user’s guide for how to deal with it: something besides a FAR. We’re writing that book, one chapter at a time.
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Posted on Wednesday, October 26, 2011 7:22:17 PM
It’s about time someone called the federal government to task for requirements type contracts and IDIQ ordering contracts, to say nothing of BPA’s. They are patently unfair and they are only available in the government arena where the government makes all the rules. It’s time we contractors organized ourselves and presented a united front to put an end to contractual abuse.
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Posted on Wednesday, October 19, 2011 4:58:35 PM
Posted on Wednesday, October 19, 2011 3:45:41 PM
GAO almost always gets it right in its protest decisions. Occasionally, the Court of Federal Claims (COFC) disagrees. But on one issue, all tribunals agree: shall means shall. GAO and the COFC agreed on the mandatory language in the HUBZone statute and regulation. Congress changed that to provide parity. But what about the VA? Is it required to conduct market research to determine if its procurements should be set aside for small business concerned owned by veterans before using the Federal Supply Schedule? According to GAO, emphatically, yes.
Posted on Wednesday, October 5, 2011 2:14:01 PM
What is the first thing you should do when you get a solicitation for a competitive government buy? Find the evaluation factors, read them, make sure you understand them, make sure they are fair, make sure they comply with the regulations and use them to manage your proposal effort. If they are not clear, fair or if they do not comport with the regulations, protest immediately. After 40 years of handling protests, we can assure you most problems in competitive procurements are caused by improperly articulated evaluation factors. The time to solve these problems is when the solicitation is first issued.
Posted on Tuesday, October 4, 2011 1:37:06 PM
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.
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Posted on Sunday, October 2, 2011 1:14:57 PM
On September 27, 2011, Judge Susan G. Braden of the Court of Federal Claims (COFC) granted a preliminary injunction stopping work on a contract awarded by the government to perform security services for the United States Court of Appeals for the Fourth Circuit. The injunction is to remain in effect until November 15, 2011 by which time Judge Braden will have an opportunity to decide the merits of the case. The government refused to delay the start date for the contract voluntarily.
What is unique about this case? To answer this question, it is important to review the factors the court must consider in granting an injunction. There are four factors the court must weigh: (1) the immediate and irreparable injury to the plaintiff; (2) the plaintiff's likelihood of success on the merits; (3) the public interest; and (4) the balance of the hardship on all parties.
As to the first factor, the court said the lost opportunity to compete was sufficient. As to the second test, Judge Braden said the court is unable to render a judgment about the likelihood of success on the merits. As to the third factor, she said the public interest certainly requires that the court be afforded a reasonable opportunity to review the documents, consider the arguments, determine the merits and write a decision. As to the last factor, she said both parties will be equally inconvenienced but the plaintiff is entitled to the process.
What makes the case unique is that Judge Braden made no determination of the likelihood of success on the merits. All she said was that the weakness of a showing on one factor may be overcome by the strength of others. However, she did not discuss how, in her view, the strength of the other factors outweigh the total absence of any determination on the likelihood of success on the merits. This, in our view, is a fatal flaw. In fact, we fail to see how Judge Braden possibily could make such a determination in this situation. Perhaps that is why she did not discuss the issue.
We should note she left open the possibility that the injunction could be extended past November 15th if the case is not ready for her final decision by that time.
The case is indeed unique. In our opinion, it is unlikely another judge would grant an injunction without any determination of the likelihood of success on the merits. In our experience, the plaintiff has a heavy burden in these cases and most often the merits of the case weigh heavily in the decision to grant relief.
Speaking of our experience, we have practiced before the COFC and the Court of Appeals for the Federal Circuit (CAFC) since our admission in 1965. If you have any questions about cases before those courts, you should contact us. You might also wish to pass this along to any of your friends interested in bid protests or claims.