Bid protest advice from an attorney who’s spent years deciding them

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Bid protests are relatively rare when you consider how many government procurements take place each year. But according to the Government Accountability Office’s most recent data, they’re pretty effective tool for losing bidders who think an agency got it wrong. According to GAO, 51% of the protests filed last year were either resolved in the protestors favor, or by the agency taking action on its own. For some insight into how the process works – and advice for companies considering a protest – Federal Drive with Tom Temin with Stephanie Magnell. She served until recently as the Deputy Assistant General Counsel for Procurement Law at GAO, where she worked as the hearing officer for hundreds of cases. She recently took a new position in the government contracts law group at the Seyfarth law firm.

Interview transcript:

Jared Serbu: Stephanie, thanks for speaking with us. And with the benefit of your expertise at GAO overseeing those hundreds of protest cases that you dealt with there. I thought we could start by talking a little bit about are there certain types of agencies, common mistakes that agencies make, that seem to keep coming up over and over again that led to a protest getting sustained?

Stephanie Magnell: Well, I think the what I’d like the point I’d like to make from the beginning, is I don’t think that anybody should presume that because there’s a protest that the agency necessarily made a mistake. And I think the GAO decision show that a lot of the time, although there’s been an aspect of the procurement that has been protested, that the agency did not make mistake. So sometimes the protester has a reason to protest that really isn’t directly tied to an error. So I think sort of importantly, I want to not equate the filing of a protest with sort of any conclusion that that the agency was necessarily in error. But that said, agencies sometimes do make mistakes. So looking at the the GAO annual report for the 2020 fiscal year, the most common bases for GAO to sustain a protest were that the agency had an unreasonable technical evaluation. The solicitation is flawed, that sort of a pre-award, solicitation challenge, the agency’s cost or price evaluation was flawed, and the agency’s past performance evaluation was reasonable. And I think that the statistics also show that agencies freeze quite frequently to corrective action. So that means that the agency itself had a chance to look at the protest, and then agreed and said, hey I think there’s merit to this protest and we agree that something needs to be corrected. So overall, I think the numbers sort of show the value of bringing a protest, as long as the protest has real, legal and factual support. And that contractors are correctly identifying some errors in procurements, whether it’s sort of in this terms of this solicitation or otherwise. And they’re often obtaining relief as well.

Jared Serbu: What should companies do to prepare their protests so that they do have the most likelihood of getting a good result when they come before GAO or another protest forum?

Stephanie Magnell: I think they’re probably sort of three things for a company to focus on. First, I would really recommend that a company shoulder the initial responsibility for identifying the factual support for the issues. And by this, I mean, I would recommend don’t throw out a general protest with the hope that of getting documents in the initial agency reports that you can then find the issues and raise them in a supplemental protest. I don’t think that’s really the right approach. Do the research, know the industry, obtain as much information as you can from the questions and answers with the agency up through any debriefing, so then you can come in with arguments that really have as much factual support as you can bring to the table. Second, I think it’s also important to make sure that those arguments are crafted properly. It’s important to have a solid legal foundation for each protest ground. And the protest should be really well organized. If you look at GAO decisions, you’ll see that the issues are really tackled protest ground by protest ground. And I think that successful presentation would also have that same approach, protest ground by protest grounded, not mixing kind of all the issues all together, but really making them a little bit more discreet in a manner so that GAO can can tackle them in the way that we see in the GAO decisions. And finally, I would also recommend that contractors get counsel involved early, because the GAO deadlines are firm. And GAO is very strict about timeliness, both on initial and supplemental protests. And so in that way it’s important to to make sure that counsel has enough time to pull together these legally and factually supported protest grounds. And in that vein I would also encouraged protesters to really look at the solicitation and consider filing a pre-award protest if they need, especially if they’re identifying mismatches, for example, between section L and Section M in the solicitation, because those in terms of timeliness, those need to be resolved, of course, before the submission of protests and not afterwards.

Jared Serbu: Interesting point you made toward the beginning of that answer on making sure that you come to the protest table prepared, rather than using the protest process itself as sort of a fishing expedition. I think in some cases, protesters would say, well we have to do it this way, because the agency has just refused to do an adequate debriefing. I wonder how much you think there is to that? Have you seen many cases where that’s actually the case where the company really tried to get good answers from the government before moving on to the protest?

Stephanie Magnell: I would say that, what I’ve seen is that companies really have a really remarkable level of expertise. They know their industries, they know how to perform the work, and that I’ve really seen that they can bring a lot to the table that doesn’t necessarily need to come from a debriefing. So I would really turn to that and not focus on the debriefing as much as kind of their general industry knowledge and their specific knowledge about what it would take to perform the contract.

Jared Serbu: Okay. And then the final thing we wanted to ask you about is just process, you’ve seen the process from the inside for a while, handled hundreds of cases. Are there any suggestions you would make to Congress or anyone else to streamline the process, either on the government side, either for the government side, or for the protester side?

Stephanie Magnell: Well, I think, in general, people who haven’t been sort of deeply involved in this type of litigation may not realize how much each protest has its own nuances, really important factual nuances, and different sort of castings and their different case law and the statutes and the regulations, and the intersection of all of these. And my view protests are really essential part of the integrity of our procurement system. I think, as you mentioned earlier, there’s the relatively small number of protests as compared to the total volume of procurements. And, again, they do have value by adding integrity to the procurement system. So I would just want any effort that goes forward to make sure that it really accounted for the fact that there are these factual differences in nuances that can really impact the outcome of any particular, any unique protest.

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