10 Competitive Best Practices for Winning Government Contracts – June 2016
Morrison & Foerster
Description
10 COMPETITIVE BEST PRACTICES FOR WINNING GOVERNMENT CONTRACTS
Other quasi-governmental entities, like the Federal Deposit Insurance Company and Amtrak, are treated as private corporate entities.
As such, offerors cannot protest contract awards to administrative
or judicial tribunals.
State government procurements are a different ballgame entirely.
They have unique protest procedures.
Also, keep in mind that contract type and contract value may also
dictate where you can protest. For example, Congress granted exclusive jurisdiction over protests of task order awards under indefinite
delivery/indefinite quantity contracts to GAO, and has limited that
jurisdiction to task orders in excess of $10 million. (Task orders under
$10 million are not protestable.)
¾¾ When to File
Knowing when you need to file a protest is also critical. For some
venues, deadlines for filing a protest are governed by strict rules; for
other venues, no rule-based deadlines may exist, but timely filing a
protest offers the best chance for a positive result.
Debriefings are not required for competitions conducted under FAR
Part 8 (Federal Supply Schedule orders) or for task orders under
FAR Part 16 valued at $5 million or less.
When a debriefing is not required, or when an offeror does not timely request a debriefing, post-award protests at GAO must be filed within 10 days of when the offeror knew or should have known of the protest ground. Absent a debriefing, a protest will usually be based on information in the notice of award. To obtain an automatic stay of performance, protests must be filed within 10 calendar days of receiving the award notice. Conclusion No company wants to spend too much time and effort planning for a scenario in which it loses a competition.
Taking advantage of some of the opportunities and strategies summarized in this article should help to ensure your company spends more time protecting its award than it does trying to pry the award away from your competitor. CM ABOUT THE AUTHOR The Court of Federal Claims is one such venue where there are no rule-based deadlines for filing a protest. However, offerors are wise to initiate pleadings diligently after award, especially if they want to enjoin contract performance while the protest is pending. CHARLES CAPITO is an associate in the Government Contracts group at Morrison & Foerster LLP, where he assists government contractors with a variety of government contracting litigation issues, with a focus on pre- and post-award bid protests and contracts claims and disputes. He also counsels clients on prime and subcontractor disputes, organi- Post-award protests to the agency are another matter.
Such protests must be submitted within 10 calendar days of when the basis for protest is known or should have been known. At GAO (the most popular protest venue), the deadlines are firm and well-established, but applying them can be very complicated. Postaward protests must be filed within 10 days of when the basis for the protest is known. If the agency is required to provide a debriefing (e.g., such as with negotiated procurements under FAR Part 15), and the offeror timely requests a debriefing (within three days of notice of award), then a protest is considered “timely” if it is filed within 10 days of when the debriefing is held.
(Note that, even if a company knows of a basis of protest prior to its required debriefing, it cannot file its protest until after the agency holds the debriefing.) To obtain an automatic stay of contract performance at GAO, the timeliness considerations are different in two very important respects: §§ Send comments about this article to cm@ncmahq.org. ENDNOTES 1. For more information on patent and latent ambiguities, refer to “The Great Federal Exception to Contra Proferentem: The ‘Patent’ Trap Door for Contractors” on page 54. 2. Do not find yourself in a position of having a debriefing that is five or more days after the first debriefing date offered by the agency. If the debriefing date first offered by an agency is more than five days before the date upon which the debriefing is actually held, then the protester risks filing prematurely if it files prior to its debriefing, but risks losing its right to an automatic stay if it waits for the debriefing. Whenever possible, companies should try to accept the earliest date proposed by the agency. The clock begins to run on the first debriefing date offered by the agency (not necessarily the day the debriefing is held), and §§ zational conflicts of interest, and revolving-door restrictions. A protest must be filed within five calendar days of that date, or within 10 calendar days of contract award, whichever is later.2 Contract Management | June 2016 77 .
When a debriefing is not required, or when an offeror does not timely request a debriefing, post-award protests at GAO must be filed within 10 days of when the offeror knew or should have known of the protest ground. Absent a debriefing, a protest will usually be based on information in the notice of award. To obtain an automatic stay of performance, protests must be filed within 10 calendar days of receiving the award notice. Conclusion No company wants to spend too much time and effort planning for a scenario in which it loses a competition.
Taking advantage of some of the opportunities and strategies summarized in this article should help to ensure your company spends more time protecting its award than it does trying to pry the award away from your competitor. CM ABOUT THE AUTHOR The Court of Federal Claims is one such venue where there are no rule-based deadlines for filing a protest. However, offerors are wise to initiate pleadings diligently after award, especially if they want to enjoin contract performance while the protest is pending. CHARLES CAPITO is an associate in the Government Contracts group at Morrison & Foerster LLP, where he assists government contractors with a variety of government contracting litigation issues, with a focus on pre- and post-award bid protests and contracts claims and disputes. He also counsels clients on prime and subcontractor disputes, organi- Post-award protests to the agency are another matter.
Such protests must be submitted within 10 calendar days of when the basis for protest is known or should have been known. At GAO (the most popular protest venue), the deadlines are firm and well-established, but applying them can be very complicated. Postaward protests must be filed within 10 days of when the basis for the protest is known. If the agency is required to provide a debriefing (e.g., such as with negotiated procurements under FAR Part 15), and the offeror timely requests a debriefing (within three days of notice of award), then a protest is considered “timely” if it is filed within 10 days of when the debriefing is held.
(Note that, even if a company knows of a basis of protest prior to its required debriefing, it cannot file its protest until after the agency holds the debriefing.) To obtain an automatic stay of contract performance at GAO, the timeliness considerations are different in two very important respects: §§ Send comments about this article to cm@ncmahq.org. ENDNOTES 1. For more information on patent and latent ambiguities, refer to “The Great Federal Exception to Contra Proferentem: The ‘Patent’ Trap Door for Contractors” on page 54. 2. Do not find yourself in a position of having a debriefing that is five or more days after the first debriefing date offered by the agency. If the debriefing date first offered by an agency is more than five days before the date upon which the debriefing is actually held, then the protester risks filing prematurely if it files prior to its debriefing, but risks losing its right to an automatic stay if it waits for the debriefing. Whenever possible, companies should try to accept the earliest date proposed by the agency. The clock begins to run on the first debriefing date offered by the agency (not necessarily the day the debriefing is held), and §§ zational conflicts of interest, and revolving-door restrictions. A protest must be filed within five calendar days of that date, or within 10 calendar days of contract award, whichever is later.2 Contract Management | June 2016 77 .
