CON 216- Protests Flashcards
Identify three protest forums
- Agency protest;
- GAO; and
- The Courts under the Administrative Procedures Act (Federal Claims Court) for appeals from the GAO or Agency.
Identify participants in a protest
The Contracting Officer;
Only interested parties, someone with direct economic interest; and
Possibly the GAO or the Federal Courts themselves.
Identify the steps in processing a protest with the Contracting Officer:
- Avoid the protest if possible;
- Interested party files a timely protest with the Contracting Officer;
- Contracting Officer reviews the protest and seeks legal counsel;
- Contracting Officer determines the impact of the protest on the procurement and/or procurement system;
- Contracting Officer prepares the appropriate documentation;
- Contracting Officer makes a decision on the merits of the protest made;
- Contracting Officer implements the decision; and
- Protestor may then appeal the COFD to the proper forum, ie GAO, Agency or Federal Courts.
Will the Federal Court hear any and all Protest arguments?
No
Does the funding expire during the Protest?
No
What can a contractor get if it wins the Protest?
Potential remedies for the successful protester might include:
- Immediately re compete the solicitation.
- Issue a new solicitation.
-Terminate the awarded contract.
- Award the contract to the protester consistent with
the applicable Reg’s and statutes.
- Grant the protester bid and proposal preparation costs,
attorney fees and expert witness fees.
How long does the GAO have to make its decision?
Time for the decision by the GAO after filing:
- Com. Gen. may rule on the protest with
or without a hearing.
- If the protester requests a hearing it MUST show a
compelling reason why a hearing is necessary.
- GAO must rule w/I 100 days after the filing of the protest.
- Or, 65 days if the protester requests the Express Option
What does the protestor have to show to get its Protest heard?
In order for the Protester to be heard & succeed, it must demonstrate:
-that it was prejudiced by the government’s improper action, and
-that there existed a substantial chance that the protester
would have been awarded the contract but for this error.
Who has the burden of proof in a Protest?
The Protester has the burden to prove its case by a
Preponderance of Evidence.
WHERE DOES GAO GET ITS AUTHORITY?
GAO is an independent Art. I (Legislative Branch) agency.
GAO is run by the Comptroller General (CG) who is appointed
by the President (Art. II) and can only be removed by Congress (Art. I).
What are the three Protest options the Contractor has?
- Agency level Protest;
- The GAO; or
- The Federal Courts (ie Administrative Procedures Act
access to the Federal Claims Court).
Who can participate in a Protest?
An actual or prospective offeror whose direct
economic interest is affected by an award or failure
to receive an award.
Why is the appeal of a GAO or Agency Protest
ruling to a Federal Court so unlikely?
The courts have held (M. Steinthan & Co. v. Seamans) that the courts must “refrain from judicial intervention into the procurement process unless the actions of the executive officials (KO) are without any rational basis.”
what is a claim?
Claim; is a written demand by the KO or the KTR seeking
money, adjustment or interpretation of the contract terms or other relief related to performance under an awarded contract. This however could result in a “Dispute” and proceed forward.
(FAR 2.101(b))
What is difference between a Protest and a Dispute?
Dispute; is a disagreement concerning the administration
(performance or termination) of an EXISTING contract.
Protest; is a proceeding to resolve a disagreement in
connection with the awarding of a Government Contract
