Ten myths of government contracting: Myth No. 2 - We should always protest

by Thompson Coburn LLP
Contact

This article originally appeared on the blog of the Public Contracting Institute.

The decision to file a protest highlights one of the unique features of contracting with the U.S. Government, involving as it does a long list of questions that must be addressed and the pressure of having to decide whether to sue a customer within a very short time frame.

In Myth No. 1, “We should never protest,” I explained why there might be certain situations where a company really should protest. As in other walks of life, however, a company’s reputation is an important part of its success, and its reputation could be harmed if it is known as a business that protests everything. The filing of a protest generally leads to a lot of work for the Government personnel that have to deal with it. The contracting officer and his or her team have to devote significant time to assembling all relevant documents and preparing an agency report. Agency counsel will be required to work with the contracting team in an effort to understand the procurement, the relevant facts, and the strength of the protester’s arguments. If the agency personnel decide that corrective action is necessary, that should not generate any ill will toward the protester; on the other hand, if a company files one spurious protest after another, that could lead to problems over time.

Don’t ever underestimate the power of a Government employee, regardless of rank. If you have offended or angered someone in a customer agency, they have ways of doing (or not doing) things that can have an impact on your company, and they can do it without leaving any tracks. For example, the exercise of a contract option is unilateral on the part of the Government, and its failure to do so is not something that will lead to a successful protest. Likewise, a miffed contracting officer might simply fail to process a request for an equitable adjustment, or fail to include your company on an emergency solicitation short list. In other words, your faucet can be turned off without your having a clue. Because of this raw power, smart contractors avoid doing things, like filing a spurious protest that will anger their customers.

Chasing a Government contract can be an expensive and arduous process, and I have not met many executives who have admitted that they did not submit a very good proposal. Likewise, I have never met a disappointed offeror (Government speak for “loser”) that believes they had gotten a fair shake in a procurement. The “Dear John” letter that disappointed offerors receive can lead to negative feelings, even anger, but the appropriate course of action has to be decided without letting emotion in the door. Many people in that position immediately want to file a protest, but in a negotiated procurement, you generally must wait until you have had the debriefing before you can file.

So, the very first step is to file a timely request for a debriefing, if one is available, and that should be done within 24 hours of receiving a “Dear John” letter. If you are offered a chance to attend an in-person debriefing, take it. And regardless of the type of debriefing you are offered (the Government gets to dictate whether a debriefing will be held in person, by phone, or in writing), always take the first date offered. Why? Because your protest period starts to run on that date, and your risk of filing an untimely protest will have increased dramatically if you decline that first date.

The “Dear John” letter should be read carefully. Some agencies will use it to provide a written debriefing, which means your protest period starts on the date you receive the letter. Other agencies might provide you with directions relating to a debriefing. For example, the agency might tell you that you must submit written questions in advance of the debriefing and that failure to do so will mean that no questions will be entertained at the actual debriefing. Experienced counsel can assist you in addressing either of these common situations.

The debriefing itself offers an opportunity for the company to make a good impression on the customer. Prepare by reviewing the applicable regulation (either FAR 15.505 or 15.506) and preparing a list of reasonable questions that you want to get answered if possible. At the debriefing itself, avoid hostility or inflammatory remarks; don’t mention the word “protest,” and maintain a poker face. In other words, be professional. Further, give some thought to who should attend on your behalf. As a general rule, I don’t recommend including your lawyer — that sends the wrong message. Your goal in a debriefing is to obtain as much information as possible, and bringing a lawyer will often cause the Government representatives to clam up.

Once the debriefing is over, confer with experienced counsel and discuss the situation. Your counsel should have what he or she needs to advise you whether a protest is advisable, and in many cases you will be told it is not. This is just another example of how a smart businessperson has to pick his battles.

Filing and pursuing protests can be expensive. If your protest is before the GAO or the U.S. Court of Federal Claims, it is very likely that a “protective order” will govern the matter. This means that only lawyers representing the various parties will be able to see the full, unredacted file. This is often frustrating for clients paying the bills, but protective orders are designed to prevent the competing companies from seeing each other’s confidential information as well as the Government’s source-selection information. While some of the protest costs might be reimbursed if you are successful, that should never be the motivating factor in the decision-making process. Instead, you should focus on the facts and the law; your relationship with the agency; your commitment to your team of subcontractors; and the potential expense. All of these factors must be weighed in a very short period of time, which means considerable pressure.

Taking a position at either end of the protest spectrum, without knowing the facts, is simply silly. A smart contractor weighs a variety of factors, including advice from competent counsel, in deciding whether and where to file a protest.

 

Written by:

Thompson Coburn LLP
Contact
more
less

Thompson Coburn LLP on:

Readers' Choice 2017
Reporters on Deadline

"My best business intelligence, in one easy email…"

Your first step to building a free, personalized, morning email brief covering pertinent authors and topics on JD Supra:
Sign up using*

Already signed up? Log in here

*By using the service, you signify your acceptance of JD Supra's Privacy Policy.
Privacy Policy (Updated: October 8, 2015):
hide

JD Supra provides users with access to its legal industry publishing services (the "Service") through its website (the "Website") as well as through other sources. Our policies with regard to data collection and use of personal information of users of the Service, regardless of the manner in which users access the Service, and visitors to the Website are set forth in this statement ("Policy"). By using the Service, you signify your acceptance of this Policy.

Information Collection and Use by JD Supra

JD Supra collects users' names, companies, titles, e-mail address and industry. JD Supra also tracks the pages that users visit, logs IP addresses and aggregates non-personally identifiable user data and browser type. This data is gathered using cookies and other technologies.

The information and data collected is used to authenticate users and to send notifications relating to the Service, including email alerts to which users have subscribed; to manage the Service and Website, to improve the Service and to customize the user's experience. This information is also provided to the authors of the content to give them insight into their readership and help them to improve their content, so that it is most useful for our users.

JD Supra does not sell, rent or otherwise provide your details to third parties, other than to the authors of the content on JD Supra.

If you prefer not to enable cookies, you may change your browser settings to disable cookies; however, please note that rejecting cookies while visiting the Website may result in certain parts of the Website not operating correctly or as efficiently as if cookies were allowed.

Email Choice/Opt-out

Users who opt in to receive emails may choose to no longer receive e-mail updates and newsletters by selecting the "opt-out of future email" option in the email they receive from JD Supra or in their JD Supra account management screen.

Security

JD Supra takes reasonable precautions to insure that user information is kept private. We restrict access to user information to those individuals who reasonably need access to perform their job functions, such as our third party email service, customer service personnel and technical staff. However, please note that no method of transmitting or storing data is completely secure and we cannot guarantee the security of user information. Unauthorized entry or use, hardware or software failure, and other factors may compromise the security of user information at any time.

If you have reason to believe that your interaction with us is no longer secure, you must immediately notify us of the problem by contacting us at info@jdsupra.com. In the unlikely event that we believe that the security of your user information in our possession or control may have been compromised, we may seek to notify you of that development and, if so, will endeavor to do so as promptly as practicable under the circumstances.

Sharing and Disclosure of Information JD Supra Collects

Except as otherwise described in this privacy statement, JD Supra will not disclose personal information to any third party unless we believe that disclosure is necessary to: (1) comply with applicable laws; (2) respond to governmental inquiries or requests; (3) comply with valid legal process; (4) protect the rights, privacy, safety or property of JD Supra, users of the Service, Website visitors or the public; (5) permit us to pursue available remedies or limit the damages that we may sustain; and (6) enforce our Terms & Conditions of Use.

In the event there is a change in the corporate structure of JD Supra such as, but not limited to, merger, consolidation, sale, liquidation or transfer of substantial assets, JD Supra may, in its sole discretion, transfer, sell or assign information collected on and through the Service to one or more affiliated or unaffiliated third parties.

Links to Other Websites

This Website and the Service may contain links to other websites. The operator of such other websites may collect information about you, including through cookies or other technologies. If you are using the Service through the Website and link to another site, you will leave the Website and this Policy will not apply to your use of and activity on those other sites. We encourage you to read the legal notices posted on those sites, including their privacy policies. We shall have no responsibility or liability for your visitation to, and the data collection and use practices of, such other sites. This Policy applies solely to the information collected in connection with your use of this Website and does not apply to any practices conducted offline or in connection with any other websites.

Changes in Our Privacy Policy

We reserve the right to change this Policy at any time. Please refer to the date at the top of this page to determine when this Policy was last revised. Any changes to our privacy policy will become effective upon posting of the revised policy on the Website. By continuing to use the Service or Website following such changes, you will be deemed to have agreed to such changes. If you do not agree with the terms of this Policy, as it may be amended from time to time, in whole or part, please do not continue using the Service or the Website.

Contacting JD Supra

If you have any questions about this privacy statement, the practices of this site, your dealings with this Web site, or if you would like to change any of the information you have provided to us, please contact us at: info@jdsupra.com.

- hide
*With LinkedIn, you don't need to create a separate login to manage your free JD Supra account, and we can make suggestions based on your needs and interests. We will not post anything on LinkedIn in your name. Or, sign up using your email address.