This four-part series is intended to provide a comprehensive understanding of the options and considerations that go into challenging (or defending) the award of a government contract, i.e. a bid protest. The instructor, Jeff Chiow, has been among the most active bid protest attorneys at GAO and the Court of Federal Claims over the last decade. This is not a review of cases, but rather a distillation of the legal, procedural, and practical factors that inform the litigation of bid protests.
The course will cover pre-award protests, post-award protests, corrective action and an assortment of special protest topics, including challenges to the award of Other Transaction Agreements, research and development contracts and state and local bid protests. Decision-makers and practitioners will gain insights to take better-informed actions in bid protests, whether they are filing or defending them. They’ll understand bid protests from all angles.
Part 1: Pre-Award Protests: Challenging the “Ground Rules” of a Procurement
Thursday, June 23, 2022 – 12:00-1:30pm.
When discussing bid protests, companies tend to focus on post-award bid protests, brought by an offeror who was not selected for award. Companies in that situation often complain about an unfairness or error in the procurement. Too often, contractors find themselves with no remedy because GAO or the Court determines that the protest implicates an untimely challenge to the ground rules of the procurement. Join Jeff Chiow as he explains why reluctant contractors may want to add pre-award protest considerations to their capture planning.
- Identifying Problems
- Shaping the Procurement
- Agency, GAO or CoFC
- Filing Deadlines and Tactics
- Customer Relations
Part 2: Post-Award Protests: Making an Informed Protest Decision
Thursday, June 30, 2022 – 12:00-1:30pm
Companies invest a lot to capture government contracts, so when the award goes to a competitor, disappointment is understandable. The outcome may also seem unfair. And time is short to decide whether there was an error in the process that needs fixing. Getting from disappointment to a second chance depends upon a rapid assessment of the situation. Join Jeff Chiow of RJO as he describes the repeatable process that should inform decisions about whether and how to challenge an award in a bid protest.
- Gathering information
- Maximizing the debrief opportunity
- Assessing common protest problems
- Preserving protest options – Agency, GAO or CoFC
- Making the protest decision
Part 3: Corrective Action in Bid Protests: What do we do now?
Thursday, July 7, 2022 – 12:00-1:30pm
According to GAO’s own numbers, a third of all bid protests it receives lead to some form of corrective action. And assuming most sustained protests compel corrective action, the numbers consistently top 40%. Despite so many protests leading to corrective action, approaching 1,000 each year, it is difficult to know what twists and turns may follow an agency’s decision to take corrective action. This session will address the uncertainty, including in the relevant decisional authorities, that makes corrective action, a challenging proposition for all involved.
- Why agencies take corrective action
- Challenging the decision to take corrective action
- Challenging the scope of corrective action
- Vigilance to preserve protest grounds
- Timeliness traps
Part 4: Can I protest OTAs, BAAs, CRADAs, etc.?: What about that state or local contract award? Time to get creative!
Thursday, July 14, 2022 – 12:00-1:30pm
The rules, timing and forums for filing protests of federal procurements do not necessarily apply to every expenditure of public funds. Jeff Chiow will cover the more specialized questions that apply to attempts to acquire goods or services under other transaction agreements, grants and cooperative agreements, broad agency announcements used to solicit research and development. Additionally, the session will discuss a model for applying common federal bid protest arguments and authorities in state and local procurements.
- Other Transaction Agreements (OTAs)
- Space Act Agreements
- National Park Service Prospectus Awards
- Broad Agency Announcements
- Grants and Cooperative Agreements
- State & Local Procurements
Instructor: Jeff Chiow, Greenberg Traurig LLP