Lunch n Learn GAO Protests: 14 Feb 2018

Transcription

1 Lunch n Learn GAO 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, Presenter Professor, Contract Management janel.wallace@dau.mil Michael Rodgers, Presenter Professor, Contract Management michael.rodgers@dau.mil

2 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

3 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

4 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

5 Background: 809 Panel Report 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 5

6 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 6

7 Background: Rand Report Directed by 2017 National Defense Authorization Act (NDAA) Bid protests Agency GAO Court of Federal Claims 7

8 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 8

9 Background: Rand Report 9

10 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 Pay by credit card or by using a PayPal, Amazon, or Dwolla account 10

11 Background: GAO Bid Protests FY

12 Top Reasons for Sustaining Protests Unreasonable technical evaluation Unreasonable past performance evaluation Unreasonable cost or price evaluation Inadequate documentation Flawed selection decision 12

13 Unreasonable Technical Evaluation FY 16 Deloitte Consulting, LLP (B , B ) Fairness to all Can t increase an already established rating without new information justifying the increased rating FY 17 CR/ZWS, LLC (B , B ) Offeror must fully comply with requirements presented in all solicitation clauses to be technically compliant 13

14 Unreasonable Past Performance Evaluation FY 16 Rotech Healthcare, Inc. (B ) 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 17 MLU Servs., Inc. (B , B ) 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

15 Unreasonable Cost or Price Evaluation FY 16 Valor Healthcare, Inc. (B , B ) Agency decides if it wants to include price realism language in a fixedprice solicitation When price realism language included, agency must conduct its evaluation consistent with that language FY 17 NCI Info. Sys., Inc. (B ) 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 15

16 Inadequate Documentation FY 17 Threat Mgmt. Grp., LLC (B ) 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 16

17 Flawed Selection Decision FY 16 Castro & Company (B ) 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 17 CALNET, Inc. (B , B ) 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

18 Practitioner Issues Competitive Range Determinations & Meaningful Discussions Justification and Approval Negotiation Essentials 18

19 Competitive Range & Meaningful Discussions 19

20 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

21 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! 21

22 Justification and Approval Competition Requirements - FAR Part 6 FAR Subpart 6.3 (J&A) FAR policy states executive agencies cannot contract without full and open competition unless one of the statutory exceptions listed in FAR 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

23 Justification and Approval 1. Contracting Activity 2. Description of Action 3. Description of Supplies/Services 4. Authority Cited 5. Reason for Authority Cited 6. Efforts to Obtain Competition 7. Actions to Increase Competition 8. Market Research 9. Interested Sources 10. Other Facts 11. Technical Certification 12. Requirements Certification 13. Fair & Reasonable Cost Determination 14. Contracting Officer Certification Army J&A Format 23

24 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 24

25 Questions & Best Practices What else? 25

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

27 References Report of the Advisory Panel on Streamlining and Codifying Acquisition Regulations; Vol 1 of 3, Jan content/uploads/2018/01/sec809panel_vol1- Report_Jan18_FINAL.pdf Army J&A Format EPDS FAQ 27

28 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 The list is intended to serve as a catalyst for your brainstorming and exploration at your work center Thanks for participating! 28