"bid protest"

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If you are excluded from the competitive range in a procurement, you have a right to request a debriefing (within 3 days) to learn why. 41 U.S.C. § 3705(a). But the scope of that pre-award debriefing is more limited than a post-award debriefing. Pre-award debriefings cover the agency’s evaluation of “significant elements” of the excluded contractor’s offer, the rationale for the exclusion, and “reasonable responses to relevant questions” posed by the excluded offeror. 41 U.S.C. § 3705(d). But they expressly cannot cover the total number or identities of offerors, or the “content, ranking, or evaluation” of the other offerors’ proposals.  41 U.S.C. § 3705(e). That information is available only in post-award debriefings.  41 U.S.C. § 3704(c).  This difference in scope may create the temptation to delay a pre-award debriefing until after award in the hope that you will gain more information. But giving in to that temptation may preclude a protest at GAO.

South Carolina law provides a statutory procedure for the submission and resolution of bid protests. Under section 11-35-4210 of South Carolina’s Consolidated Procurement Code and section 19-445 of South Carolina’s procurement regulations, bid protests relating to procurements greater than $50,000 may be initiated with a letter directed to the appropriate chief procurement officer (“CPO”).

Filing the protest

A protest must be in writing and must set forth the grounds of protest and the relief requested with enough particularity to give notice of the issues to be decided. S.C. Code Ann. § 11-35-4210(2).

As with federal procurements and those of many other states, the deadline for the submission of a bid protest is short. If challenging the terms of a solicitation, a prospective bidder must file the protest within 15 days of the issue date of the invitation for bids or request for proposals. If an amendment to the solicitation is at issue, the protest must be filed within 15 days of the amendment.

The deadline for protesting the award or intended award of a contract is even shorter. Unsuccessful bidders must file such protests within 10 days of the date of award or notification of intent to award, whichever is earlier. The protest can be amended after it is filed, but such amendments must be filed within 15 days after the date of award. S.C. Code Ann. § 11-35-4210(1)(b).

No one will argue against the need to improve cybersecurity. We should limit the vulnerability of critical infrastructure and preserve the confidentiality of military technology, private company trade secrets, and individual medical records.

But there is a significant cost to upgrade IT systems in order to achieve this goal. The federal government will pay more to contractors who can meet heightened cybersecurity standards. If cybersecurity standards are too restrictive, qualified contractors will be driven away from federal contracting. At a minimum, new cybersecurity standards will mean more grounds for bid protests, which are the focus of this post.

First, the background

Executive Order No. 13636 (Feb. 12, 2013) [pdf] called for agencies to publish guidance on mitigating cybersecurity threats in federal procurement. In November 2013, DOD and GSA released a joint report recommending that compliance with an established cybersecurity protocol be a precondition to the award of information and communication technology (“ICT”) contracts. See Improving Cybersecurity and Resilience through Acquisition, Final Report of the Department of Defense and General Services Administration (Nov. 2013) [pdf].

The National Institute for Standards and Technology (“NIST”) released its voluntary framework for improving cybersecurity for critical infrastructure in February 2014. See Framework for Improving Critical Infrastructure Cybersecurity, Version 1.0 (Feb. 12, 2014) [pdf]. The NIST Framework is a tool for organizations seeking to measure and improve their cybersecurity programs against an ideal. The Framework encourages organizations to improve their cybersecurity programs “when such a change would reduce cybersecurity risk and be cost effective.” Compliance is not yet mandatory, but legislation incentivizing or requiring compliance should be expected.

These are by no means the first cybersecurity standards for federal contractors, but they would broaden and increase existing requirements. As they are implemented, cybersecurity requirements will certainly lead to an increase in pre- and post-award bid protests for ICT contracts. We see them principally in three areas.

The GAO’s decision in BC Peabody Constr. Serv., Inc., B-408023 (May 10, 2013) [pdf] illustrates the importance of establishing prejudice in a bid protest. The protester alleged that it proposed the same subcontractor (Bauer Foundation Corporation) as the awardee proposed on a dike rehabilitation project. Both offerors relied on Bauer for the “cut-off wall,” a critical element of the project. Both proposals showed that Bauer had the required experience for the cut-off wall.

Despite their use of the same subcontractor, the Corps of Engineers nevertheless assigned the awardee and the protester different scores for the cut-off wall element of their proposals. The Corps rated the awardee’s proposal acceptable for both the demonstrated experience and past performance subfactors, but it rated the protester’s proposal unacceptable.  The GAO agreed the Corps’s action was procurement error. “Where multiple proposals propose the same contractor, once the agency becomes aware of that subcontractor’s experience . . . it cannot reasonably assign one proposal a higher score than another based on that experience.” GAO nevertheless denied the protest.

We have dedicated multiple posts to understanding the scope of jurisdiction over protests of task and delivery orders. Previous posts can be found here and here. Thanks to an amendment contained in the 2013 National Defense Authorization Act [pdf], the issue remains somewhat unsettled. Fortunately, Congress still has a few years to set the record straight.

Before the 2013 NDAA, disappointed offerors could protest the issuance of task and delivery orders valued over $10 million regardless of whether the order was issued by a civilian or Department of Defense (DoD) agency. Both of the authorizing statutes providing for task order protest jurisdiction on civilian and DoD orders over $10 million were set to expire on September 30, 2016 (the “sunset provisions”).

Section 830 of the 2013 NDAA amends 10 U.S.C. § 2304c(e) by eliminating the sunset provision, providing for permanent GAO jurisdiction over challenges to DoD task and delivery orders over $10 million. However, this amendment applies only to the statute authorizing jurisdiction over DoD task and delivery orders. The corresponding statute providing for task order protest jurisdiction over civilian agency task and delivery orders over $10 million, 41 U.S.C. § 4106(e), is still set to expire on September 16, 2016. 

Postal Service contractors frequently employ their own language.  For example, to a postal contractor, a “highway contract” is not a contract to build a road but rather a contract to transport mail on a road. A new example of this postal-only language is something called a “disagreement.”  This is the word used to describe what the rest of the government contract world would call a “protest.”  The Postal Service’s internal bid protest (“disagreement”) procedures have been around now for several years, but have recently been revised, so this would be a good time to review them.