GCL Chapters 10 - 12 PROTESTS, the CLAIM PROCESS and COSTS of LITIGATION ASCM 650 Prof. Lawrence Jordan III, Esq. The Protest - What Can Be Protested? The solicitation package (Request for Quotations, Request for Proposals, Invitation for Bid); anything included in the solicitation package. The way the government evaluated offers and bids. The way the government carried out discussions in a negotiated procurement. The government's determination of responsibility of the winner. Picking the winner. Four Issues that Generally Get Protested The reasonableness of the decision Did the contracting officer use the stated evaluation factors? A contract award must follow the stated evaluation factors. Did the contracting officer follow all the laws and regulations? A contract award must be reasonable. The government has to follow procurement laws. Did the contracting officer adequately document the decision? FAR 15.308 provides guidance on how a contracting officer should document the award decision. When Can Something be Protested? The rule for filing of a protest depends on what is being protested. There are two choices: protest something in the solicitation package and a protest of everything else. The solicitation package: If a protester does not like something in the solicitation package, he must protest prior to the time that the offers or bids are to be received. Everything else: If a protest doesn't deal with the solicitation package, then it is a protest of \"everything else.\" The protest must be filed within 10 days of when the protestor knew, or should have known, of the basis for protest, with an exception for protests that challenge a procurement conducted on the basis of competitive proposals under which a debriefing is requested and, when requested is required. How is Something Protested? GAO Protests Protests can be filed by fax, e-mail, or via U.S. Mail The protest must include the name, street address, electronic mail address, telephone and fax number of the protestor. It must be signed by the protestor or its representative. Must identify the contracting agency and the solicitation and or contract number. Must set forth a detailed statement of the legal and factual grounds of protest including copies of relevant documents. Must set forth all information establishing that the protestor is an interested party. Must set forth all the information establishing the timeliness of the protest. Must specifically request a ruling by the Comptroller General of the U.S.; and Must state the form of relief requested. CFC Protests Cost more money and requires a complaint to be filed (typically by an attorney) The Claim Process A claim is a written demand or assertion by one of the contracting parties seeking, as a matter of right, the payment of money in a sum certain, the adjustment or interpretation of contract terms, or other relief arising under or relating to a contract. Claims for Money Contractor must demand a specific dollar amount from the government. Contractor must demand a final decision of the contracting officer. Contracting officer must state the basis of the claim. Claims for Interpretation of Contract terms. Anytime the contractor says the contract means one thing and the government says it means another, there is the possibility of a claim over contract interpretation. Claims for other relief This is a catch-all Typically, it is a claim involving a termination or default. Examples include: When the contractor asks the government to reconsider its termination because there was an excusable delay such as the government's slowing the project down. Asking the government to reduce or eliminate the assessment of liquated damages This type of claim can be made by sending the government a letter describing what happened to the contractor and why the contractor wants relief. Contracting Officer's Final Decision The contracting officer must prepare a written decision that include the following: Description of the claim or dispute. Reference to the pertinent contract terms. Statement of the factual areas of agreement and disagreement; and Statement of the contracting officer's decision, with supporting rationale. When Must a Claim be Filed? Claims have two statute of limitations or deadlines Statute of limitations for filing claims with the contracting officer A deadline to file claims with the contracting officer; and A deadline to appeal a contracting officer's decision to the appropriate BCA or the CFC A claim by a contractor has to be filed within 6 years after the accrual of the claim (date that the contractor knew of should have known of a potential claim against the government) Statute of limitations for Appealing a contracting officer's final decision A contracting officer's final decision may be appealed to the BCA within 90 days of receipt by the contractor or to the CFC within 1 year of receipt. Costs of Litigation Equal Access to Justice Act (EAJA) An eligible party who is a prevailing party in a lawsuit against the government must recover attorneys' fees not to exceed $125 an hour unless the government has a legal position that is substantially justified. Prevailing party: The winning party must prove that it was a \"prevailing party.\" Eligible party: To be an eligible party, must fall in to one of the following categories: Individual whose net worth did not exceed 2 mil at the time the civil action was filed Any owner of an unincorporated business, partnership, corporation association with a net worth that does not exceed 7 mil at the time the civil action was filed, and which had not more than 500 employees at the time the civil action was filed. Substantially justified: The government's position must have a reasonable basis both in law and in fact. EAJA makes the government pay if its litigation position on the facts and the law is not substantially justified. Westlaw Journal Formerly Andrews Litigation Reporter GOVERNMENT CONTRACT Litigation News and Analysis Legislation Regulation Expert Commentary Expert Analysis VOLUME 24, ISSUE 7 / AUGUST 9, 2010 The bid protest: A primer By J. Andrew Howard, Esq., and Katherine L. Miller, Esq. Alston & Bird In these difficult economic times, companies that previously had little or no publicsector business are increasingly turning to government contracting to make up for lost commercial ventures and revenues, especially with the opportunities made available with the passage of the American Recovery and Reinvestment Act of 2009.1 As they soon become aware, doing business with federal, state and local governments involves unique rules and procedures, including the bid protest. A bid protest is a procedure by which a contractor, in certain circumstances, files a written objection to an agency's procurement process or decisions. While a protest may involve virtually any aspect of a particular public procurement, it frequently involves issues such as objections to the terms and conditions of a solicitation or proposed contract or the agency's decision to award or not to award a government contract.2 Protests serve many important purposes for the public contracting community and the government, including a way to ensure integrity in the public procurement process. For the contractor, a bid protest is not, however, a proper or effective method of saving a public owner from making a bad business decision. Rather, protests give contractors a forum and procedure for contesting legitimate concerns about the agency's adherence to its procurement process and laws. With more and more companies engaged in public contracting, the number of bid protests is on the rise. In fact, the U.S. Government Accountability Office, one of the principal forums for the resolution of federal bid protests, reports that the number of bid protests nearly doubled in 2009.3 Thus, an understanding of this process is essential for any government contracts practitioner. STATE AND LOCAL BID PROTESTS The principal focus of this primer is on federal bid protests, mainly because the procedures for protesting state and local agency procurements vary from state to state and even among counties and municipalities within the same state. For example, many state and local government agencies have enacted and follow detailed procurement and protest rules and procedures, whereas others have no formally published rules or procedures for contractors to follow. Thus, any contractor interested in pursuing state or local contracts must familiarize itself with the specific procurement WESTLAW JOURNAL GOVERNMENT CONTRACT and protest rules that the procuring agency will follow. Those rules may derive from a statewide procurement code, agency-specific rules and regulations, and, for local procurements, county and municipal ordinances. Whatever the source, the applicable protest procedure should be described or at least referred to in the solicitation. FEDERAL BID PROTESTS The two types of federal bid protests There are two kinds of bid protests: pre-award protests and post-award protests. As the name suggests, pre-award protests challenge aspects of the procurement that are known or should be known and can be remedied before the award of the contract. Likewise, post-award protests usually challenge the agency's decision to award or not award the contract to a particular bidder or offerer. An issue that could be the subject of a pre-award protest generally cannot be raised after the submission of bids or proposals on the grounds that such issues are deemed waived. A bid protest is not a proper or effective method of saving a public owner from making a bad business decision. Common pre-award protest issues include: The specifications give an unfair advantage to one bidder or offerer. The minimum responsive requirements effectively exclude small or disadvantaged businesses. The proposed evaluation criteria are contrary to a higher legal authority such as a federal statute or regulation. Common post-award issues include: Evidence of an improper relationship or communications between the apparent awardee and the procuring agency or procurement officials. The apparent awardee's bid or proposal failed to satisfy the minimum responsive requirements. An incorrect determination by the agency that the protester was not responsible or its bid or proposal was non-responsive. The agency applied different evaluation criteria than were specified in the solicitation. The agency applied the correct evaluation criteria, but weighted the criteria differently than specified. Simple arithmetic errors in the scoring of proposals (e.g., arbitrary and capricious scoring of proposals). Issues common to all protests, regardless of the forum As discussed in more detail below, a federal bid protest may be filed in three venues: the agency whose procurement process or decision is being challenged, the GAO or the U.S. Court of Federal Claims. Although some of the procedures governing bid protests vary depending on which forum a protester chooses, certain issues are common to them all. The first common issue is standing; a bid protest can only be brought by a person with proper standing. In federal procurements, standing is limited to persons identified as \"interested parties.\" An interested party is defined as an \"actual or prospective offerer 2 2010 Thomson Reuters VOLUME 24 ISSUE 7 AUGUST 9, 2010 whose direct economic interest would be affected by the award of a contract or by the failure to award a contract.\"4 Every disappointed bidder has an economic interest affected by the decision to disqualify it from further competition or to award a contract to a competitor. However, interested-party status does not include a disappointed bidder with no reasonable possibility of being eligible for the award if the protest is sustained. In other words, the bidder next in line for award is an interested party and therefore has standing to prosecute a bid protest. An issue that could be the subject of a pre-award protest generally cannot be raised after the submission of bids. Interested-party status can extend to bidders further down the line but only if they can demonstrate a reasonable basis why all higher-ranked offerers, or bidders with lower bids, are ineligible for the award. For these reasons, taxpayers and parties that choose not to participate in a procurement opportunity are not interested parties for purposes of a federal protest.5 In addition to standing, a protester must ensure that its protest is filed in a timely manner. Specific timing requirements for the various forums are described in more detail below. Nevertheless, each forum treats pre-award bid protests uniformly, which is to say that a pre-award protest filed with the agency, the GAO or Court of Federal Claims must be brought prior to the date set for the opening of bids or receipt of proposals. Post-award protests generally must be received within a certain number of days after an agency publicizes its intent to award a contract to the apparent awardee, usually within 10 days after the notice of intent to award or five days after debriefing, if a debriefing is available.6 Where to file a protest Agency-level protests The process and procedures applicable to agency-level protests are contained in Federal Acquisition Regulation Part 33.1, which may be supplemented by agency-specific regulations.7 Under the FAR, every agency is required to provide a mechanism for the inexpensive, informal, procedurally simple and expeditious resolution of protests.8 In addition, the FAR outline basic procedures of which contractors should be aware. First, in its submission of a written protest, the contractor should present a \"concise and logically presented\" basis for its protest in order to facilitate review by the contracting officer.9 To that end, the FAR require contractors to include the name, address and telephone and fax numbers of the protester; identification of or reference to the solicitation or contract number to which the protest relates; a detailed statement of the legal and factual grounds for the protest; copies of all documents relevant to the protest; a request for a ruling by the agency; a statement as to the form of relief requested; all information supporting the protester's standing (i.e., proof that the protester is an interested party); and, finally, information demonstrating that the protest has been filed in a timely manner.10 Generally, the contracting officer is the agency official to whom protests are submitted, and this official makes the decision regarding the protest.11 The protester may request an independent review of its protest at a level above the contracting officer (or other designated agency official), but only if such an option is provided for in the solicitation.12 If the contractor chooses to request an independent review, the agency 2010 Thomson Reuters 3 WESTLAW JOURNAL GOVERNMENT CONTRACT designates the official who will conduct the review. That individual must not have had previous personal involvement in the procurement.13 As mentioned above, timing is critical to a contractor's ability to maintain a protest. Protests based on alleged improprieties in the solicitation or other irregularities that are known or should be known prior to the contract award must be raised before the date set for the receipt of bids or the closing date for the receipt of proposals.14 All other protests (i.e., post-award protests) must be filed no later than 10 days after the basis for the protest is known or should have been known, whichever is earlier, unless a different time is provided for in agency supplemental regulations or the solicitation.15 Usually, any protest submitted after these deadlines will be dismissed summarily by the agency. Nevertheless, agencies may, in their sole discretion, consider an untimely protest if the contractor shows good cause for the delay or raises in its protest some issue of significance to the agency's acquisition system.16 In practice, agencies almost never exercise this discretion; this underscores the diligence contractors must have in adhering to these strict timing limitations. Interested-party status does not include a disappointed bidder with no reasonable possibility of being eligible for the award. One benefit of an agency-level protest that is filed in a timely fashion is the imposition of an automatic stay of the procurement pending resolution of the protest. Thus, upon receipt of the protest, the agency may not award a contract or, if a contract has been awarded, must suspend performance of the work pending resolution of the protest.17 However, for urgent and compelling reasons that must be justified in writing, the agency may lift the stay and move forward with a contract award or performance if doing so is in the best interest of the government.18 Such a determination must be approved by an official at the level above the contracting officer or by another official pursuant to agency regulations.19 Another benefit of an agency-level protest that is filed in a timely fashion is the speed with which the agency should decide the issues presented. Once an agency has properly received a timely protest, the agency must make its best efforts to resolve the matter within 35 days.20 If the protester is not satisfied with the agency's decision, the protester may appeal to the GAO. This appeal must be made within 10 days after the date when the protester became aware of the initial adverse agency action.21 Some agencies have internal appellate review procedures. Opting to engage in this internal appellate review procedure does not extend the time within which a GAO appeal must be brought.22 Consequently, a protester would be well advised to institute a timely GAO appeal pending internal appellate review by the agency. GAO protests Protests to the GAO are a popular option among government contractors. GAO protests are subject to the rules and procedures contained in Title 4, Section 21, of the Code of Federal Regulations.23 Like agency-level protests, however, protests to the GAO must: 4 Be in made writing and contain the name, address, e-mail address and telephone and fax numbers of the protester. 2010 Thomson Reuters VOLUME 24 ISSUE 7 AUGUST 9, 2010 Be signed by the protester or the protester's authorized representative. Identify the agency and the solicitation and/or contract number to which the protest relates. Contain a detailed statement of the legal and factual grounds supporting the protest and include copies of all documents relevant to the protest. Demonstrate that the protester is an interested party for purposes of proving standing. Request a ruling from the comptroller general. State the form of relief requested.24 Again, the failure to comply with these requirements may be grounds for dismissal of the protest.25 At the GAO, the person responsible for reviewing and resolving the protest is a nonpartisan member appointed by the GAO's Office of General Counsel. Often, this person is an experienced attorney who specializes in bid protests. Interestingly, GAO protest decisions are treated as non-binding recommendations to the responsible contracting agency. In practice, nearly every GAO protest decision is adopted and implemented by the agency, in large part because the GAO is obligated to report to Congress for review and investigation all instances in which an agency ignores the GAO's recommendation.26 Like their agency-level counterparts, protests before the GAO also have strict timing requirements, and protests based upon alleged improprieties in a solicitation must be filed before the bid opening or the date set for receipt of proposals unless the alleged impropriety is not apparent before that time.27 All other protests must be filed no later than 10 days after the basis of the protest is known or should have been known, whichever is earlier. This is the case, provided, however, that the 10-day limitation is not applicable if the protest (not based on an alleged impropriety in the solicitation) is brought before the closing date for the opening of bids or the receipt of proposals.28 29 Every agency is required to provide a mechanism for the inexpensive, informal, procedurally simple and expeditious resolution of protests. As discussed above, if the protester is appealing an adverse agency-level protest decision, the appeal must be filed with the GAO no later than 10 days after the protester learns of the initial adverse agency action.30 The GAO strictly enforces these timeliness requirements, but if good cause is shown, it may consider the merits of a protest filed in an untimely manner.31 If an agencylevel protest is not filed in a timely manner, a subsequent protest to the GAO also will be considered untimely.32 Upon the filing of a timely protest, the GAO must take certain actions. First, it must give notice of the protest to the procuring agency by telephone within one day after filing.33 Like agency-level protests, the timely filing of a protest at the GAO triggers an automatic stay of the underlying procurement. However, the automatic stay is triggered only if the agency receives notice of the protest from the GAO by telephone within the 10-day period. Consequently, protesters must ensure that they file their GAO protests with sufficient time to enable the GAO to provide this notification. Failure to factor this one-day notification period into the 2010 Thomson Reuters 5 WESTLAW JOURNAL GOVERNMENT CONTRACT equation easily can result in the timely filing of a protest with the GAO, but without the imposition of the automatic stay. This lack of a stay severely restricts the likely remedies available to the protester, if the protest is successful. More often than not, it completely eviscerates the very purpose of the protest, which is to keep the contractor \"in the game\" for contract award. Timing is critical to a contractor's ability to maintain a protest. Second, the GAO must promptly send the protester and the agency a written acknowledgment that a protest has been received.34 After that, the agency must notify all \"interveners\" of the protest.35 An intervener is defined as \"an awardee if an award has been made or, if no award has been made, all bidders or offerers who appear to have a substantial prospect of receiving an award if the protest is denied.\"36 Within 30 days after receiving notice of the protest, the agency must provide a written report that contains the contracting officer's statement of the relevant facts, a best estimate of the contract value, a memorandum of law, copies of relevant supporting documents and a list of documents in the agency's possession that the agency has not produced.37 With respect to the production of documents, practitioners should be aware that protesters may request, in their protest, the agency's production of specific documents relative to the protest.38 However, agencies may withhold requested documents if it deems them \"protected.\" Protected documents include \"proprietary, confidential, or source-selection-sensitive material, as well as other information the release of which could result in a competitive advantage.\"39 In this circumstance, the GAO provides another advantage over agency-level protests: the protester's counsel can apply for a protective order.40 Although the protester itself may not have access to the protected documents, the protester's counsel may learn relevant information from protected parts of the record.41 The GAO often conducts hearings to better understand the issues raised in a protest, and these may be held at the request of the protester or agency or on the GAO's own initiative.42 If the protester wants a hearing, it must make its request for the hearing in its initial protest filing and must set forth the reasons why a hearing is needed to resolve the protest.43 Hearings are presided over by a GAO attorney who has been assigned to the protest and who may also conduct a pre-hearing conference to discuss and resolve preliminary matters.44 Within five days after the conclusion of the hearing, the parties must submit post-hearing comments for consideration by the GAO.45 Failure to submit comments is grounds for dismissal of the protest. Consequently, protesters must ensure that they file their post-hearing comments in a timely manner.46 Like agency-level protests, GAO protests are resolved quickly. GAO protest decisions must be issued within 100 days after the protest is filed.47 The GAO also may use an express option that requires a decision within 65 days after the protest is filed.48 A request for this express option must be made in writing, it must explain why the case is suitable for resolution within the 65-day period and it must be received by the GAO not later than five days after the protest or supplemental/amended protest is filed.49 As stated above, GAO decisions are not binding on the procuring agency.50 However, agencies almost always follow the GAO's recommendations, and any agency refusal to abide by the GAO's decision must be reported to Congress for investigation. 6 2010 Thomson Reuters VOLUME 24 ISSUE 7 AUGUST 9, 2010 If the protester, any intervener or any agency involved is not satisfied with the GAO's recommendation, there are a few options to appeal. First, the appealing party may simply file a request for reconsideration with the GAO.51 Requests for reconsideration must be received no later than 10 days after the basis for reconsideration is known or should have been known, whichever is earliest.52 The reconsideration request must contain a detailed statement of the factual and legal grounds upon which reversal or modification of the GAO's initial decision is deemed warranted, specifying any errors of law made or information not previously considered.53 Unlike an initial protest, no automatic stay is triggered by a request to reconsider.54 One benefit of a timely filed agency-level protest is the imposition of an automatic stay of the procurement. Another option is for the aggrieved party to appeal to the Court of Federal Claims, which generally focuses on the agency decision, not the GAO recommendation.55 Though the GAO's decision non-binding, the court often gives it great weight because of the agency's expertise in federal procurement-law issues.56 U.S. Court of Federal Claims protests A third forum in which to file a bid protest is the Court of Federal Claims. This is a good option for disappointed bidders to consider when the contracting agency overrides the automatic stay or if GAO or agency-level deadlines have passed. Although the various U.S. district courts at one time had concurrent jurisdiction to entertain bid protests, the Court of Federal Claims now has exclusive jurisdiction among Article III courts to consider bid protests.57 Proceedings for bid protests at the court are resolved under the Administrative Procedures Act.58 Under the APA, an agency's procurement decision must be upheld unless it is found to be \"arbitrary, capricious, an abuse of discretion, or otherwise not in accordance with law.\"59 In other words, at the court, agency procurement decisions are afforded great deference. Like other judicial bodies, the Court of Federal Claims can grant any relief it deems just and proper, and this often includes declaratory and injunctive relief. However, monetary damages are generally limited to the costs of bid preparation in the vast majority of cases.60 Appeals from adverse protest decisions, like any other court decision, may be made to the U.S. Court of Appeals for the Federal Circuit.61 To the greatest extent possible, all proceedings before the Court of Federal Claims adhere to the Federal Rules of Civil Procedure.62 However, the court also has promulgated its own rules.63 Appendix C of the rules outlines the procedure to be followed in procurement protest cases.64 Specifically, Appendix C has provisions covering a variety of issues, including: Pre-protest filing notification requirements and procedures. Filing pleadings under seal. The initial status conference. The procedure for injunctive relief. Protective orders. The content and filing of an administrative record by the United States. The admission of counsel.65 2010 Thomson Reuters 7 WESTLAW JOURNAL GOVERNMENT CONTRACT Under the court's rules, the protester's counsel must give notice to the Department of Justice, the clerk of the court, the procuring agency's contracting officer and the apparently successful offerer/bidder, if known, before filing a procurement protest.66 The protester's notification must contain the name of the procuring agency and the number of the solicitation; the name and telephone number of the contracting officer responsible for the procurement; the name and telephone number of the principal agency attorney if known; whether the protester has discussed the need for temporary or preliminary injunctive relief with DOJ counsel; whether the action was preceded by the filing of a protest with the GAO; and whether the plaintiff contemplates the need for the court to enter a protective order.67 GAO protest decisions are treated as nonbinding recommendations to the responsible contracting agency. If the protester believes the complaint is sensitive or contains confidential or proprietary information, pleadings may be filed under seal.68 Also, a protester will likely seek a protective order from the court to ensure the protection of sensitive information.69 These procedures, provided for in the court rules, will ensure that confidential information is not leaked during review by the court. As soon as practicable after the filing of a complaint, the court must schedule an initial status conference to address relevant issues.70 At this conference, the parties must discuss and set a date for the filing of the administrative record,71 which must be provided by the United States.72 In the Court of Federal Claims, the United States is required to produce relevant core documents early in the process, including the procurement request, bid abstract and other relevant documents.73 Finally, unlike other federal tribunals, attorneys are authorized to appear before the court without formal admission to the bar if they do not have sufficient time to be admitted pro hac vice.74 In this event, however, counsel must seek admission to the court within 30 days after the filing of the action.75 Advantages and disadvantages of the three forums There are various advantages and disadvantages to each of the three different federal protest forums which should be considered by a protester before deciding where to file a bid protest. Filing with the soliciting government agency whose procurement process is being challenged is the most informal and least expensive venue for prosecuting a bid protest. It is also the fastest, with decisions generally rendered within 35 days after filing.76 In addition, the filing of a timely protest triggers an automatic stay of the award or performance of the contract at issue. Conversely, agency-level protests often raise issues and complaints that are decided by the very person or persons whose actions, decisions or conduct are the subject of the protest. Consequently, agency-level protests lack the element of total independent review. Because of the number of protests filed each year, the GAO provides a more structured and formal process. GAO protests also provide independent review because they are adjudicated by an official who is not associated with the procuring agency. The person adjudicating the protest is also likely to have ample experience in bid protests and can give a well-reasoned analysis of the issues. Like a protest before the procuring agency, one before the GAO provides timely protesters with an automatic stay of the award or performance of the contract, although practitioners must be aware of and take into account the one-day GAO notification rule. The GAO's protest procedures also provide meaningful participation by legal counsel. 8 2010 Thomson Reuters VOLUME 24 ISSUE 7 AUGUST 9, 2010 However, GAO protests take longer and are more expensive than agency-level protests. Also, GAO decisions regarding protests are not binding on the agencies. In practice, however, nearly all GAO protest decisions are adopted and implemented by the agency. As should be expected, the Court of Federal Claims is the most formal and most expensive forum within which to file a bid protest. Because a protest at the court essentially constitutes civil litigation in federal court, the costs of prosecuting a protest can be tremendous, and resolution of the protest can take several months. The GAO often conducts hearings to better understand the issues raised in a protest. In addition, there is no automatic stay of the award or performance of the contract at issue, which means that the procurement process will go forward if a restraining order suspending the contract award or performance is not issued. Finally, under the APA, the Court of Federal Claims must provide extreme deference to the agency's decision, making it the least friendly forum for protesters in the majority of procurement protest cases. CONCLUSION The process for filing a bid protest can be complex and requires a thorough understanding of the variety of statutes, codes, rules and procedures that apply. Thus, disappointed bidders and offerers must take into account and evaluate many considerations before engaging in the protest process. Further, with increased interest in public contracting, understanding the protest process is more important now than ever. NOTES Pub. L. No. 111-5, 123 Stat. 115 (2009). See 48 C.F.R. (FAR) 33.101 (defining a protest as a \"[w]ritten objection by an interested party to any of the following: (1) A solicitation or other request by an agency for offers for a contract for the procurement of property or services. (2) The cancellation of the solicitation or other request. (3) An award or proposed award of the contract. (4) A termination or cancellation of an award of the contract, if the written objection contains an allegation that the termination or cancellation is based in whole or in part on improprieties concerning the award of the contract.\"). GAO Annual Report to Congress (Jan. 8, 2010), available at http://www.gao.gov/special.pubs/ bidpro09.pdf. 1 FAR 33.101. 2 3 4 Winstar Commc'ns v. United States, 41 Fed. Cl. 748 (1998). A debriefing is a conference at which the government's procurement officials, typically the contracting officer, explains the source selection decision. It should be emphasized that a debriefing is not an opportunity for a disappointed bidder or offerer to supplement its bid or offer, or to learn specifics of its competitors' bids or offers. Rather, the debriefing simply provides the opportunity for the contracting officer to point out the strengths and weaknesses of a bidder's bid or an offerer's proposal, with general reference to the winning bid or offer. Participating in a debriefing may alleviate the contractor's need or desire to file a post-award protest. Finally, although contractors frequently participate in debriefings as a precursor to filing a protest, it is recommended that the contractor not have its inside or outside counsel in attendance at the debriefing. Doing so will stifle the free flow of information, rendering the debriefing effectively useless to the contractor for any purpose. 5 6 FAR 33.1. Id. FAR 33.103(d). 7 8 9 Id. 10 Id. 11 Id. 12 Id. 13 2010 Thomson Reuters 9 WESTLAW JOURNAL GOVERNMENT CONTRACT FAR 33.103(e). 14 Id. 15 Id. 16 FAR 33.103(f). 17 Id. 18 Id. 19 FAR 33.103(g). 20 FAR 33.103(d). 21 22 Id. 4 C.F.R. 21. 23 4 C.F.R. 21.1. 24 Id. 25 See note 3 supra. 26 4 C.F.R. 21.2. 27 Id. 28 Id. 29 Id. 30 Id. 31 Id. 32 4 C.F.R. 21.3. 33 Id. 34 Id. 35 4 C.F.R. 21.0. 36 Id. 37 4 C.F.R. 21.1(d). 38 4 C.F.R. 21.4(a). 39 4 C.F.R. 21.4. 40 Id. 41 4 C.F.R. 21.7. 42 4 C.F.R. 21.1(d), 21.7. 43 4 C.F.R. 21.7. 44 Id. 45 Id. 46 4 C.F.R. 21.9. 47 Id. 48 4 C.F.R. 21.10. 49 See, e.g., Honeywell Inc. v. United States, 870 F.2d 644, 647 (Fed. Cir. 1989). 50 4 CFR 21.14(a). 51 Id. 52 Id. 53 4 C.F.R. 24.14(c). 54 See, e.g., Honeywell, 870 F.2d at 647. 55 Id. 56 Administrative Dispute Resolution Act of 1996, Pub. L. No. 104-320, 110 Stat. 3870 12(d) (codified at 28 U.S.C. 1491). 57 5 U.S.C. 706. 58 Id. 59 Tucker Act, 28 U.S.C. 1491(b)(2). 60 10 2010 Thomson Reuters VOLUME 24 ISSUE 7 AUGUST 9, 2010 U.S. Court of Federal Claims, Court Approved Guidelines for Procurement Protest Cases (Dec. 11, 1996), available at http://www.abanet.org/contract/federal/bidpro/cofcguid.html. 61 Id. 62 U.S. Court of Federal Claims, Rules of the U.S. Court of Federal Claims, available at http://www. uscfc.uscourts.gov/sites/default/files/court_info/rules_20100111_v6.pdf. 63 Id., Appendix C. 64 Id. 65 Id., Appendix C II. 66 Id. 67 Id., Appendix C III. 68 Id., Appendix C VI. 69 Id., Appendix C IV. 70 Id. 71 Id., Appendix C VII. 72 Id. 73 Id., Appendix C VIII. 74 Id. 75 FAR 33.103. 76 Andy Howard (left), a partner in the construction and government contracts practice group at Alston & Bird in Los Angeles, has substantial experience representing clients in all aspects of government contracting, including the prosecution of bid protests at the federal, state and local levels. Kate Miller (right) is an associate in the firm's Atlanta office and is a member of the construction and government contracts practice group. 2010 Thomson Reuters. This publication was created to provide you with accurate and authoritative information concerning the subject matter covered, however it may not necessarily have been prepared by persons licensed to practice law in a particular jurisdiction. The publisher is not engaged in rendering legal or other professional advice, and this publication is not a substitute for the advice of an attorney. If you require legal or other expert advice, you should seek the services of a competent attorney or other professional. For subscription information, please visit www.West.Thomson.com. 2010 Thomson Reuters 11