1Providing CMMI® Process-Based Solutions

Protests A Contractors Perspective

cheryl.nilsson@tybrin.com

850-337-2609

Cheryl L. NilssonVice President, Contracts

TYBRIN Corporation

2Providing CMMI® Process-Based Solutions

Perspectives on Protests

From the GAO

Statistics

Tips The “Hot” Protest Issues From Contractors

Decision to Protest

Opportunities to Compete

Access to Information

Level Playing Field

The Debriefing

“A Fair Shake”

3Providing CMMI® Process-Based Solutions

From the GAO -Protests Statistics

FY2007 FY2006 FY2005 FY2004 FY2003 FY2002

Cases Filed1411

(up 6%)1327

(down 2%)1356

(down 9%)1485

(up 10%)1352

(up 12%)1204

(up 5%)Merit (Sustain + Deny) Decisions

335 249 306 365 290 256

Number of Sustains 91 72 71 75 50 41Sustain Rate 27% 29% 23% 21% 17% 16%

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From the GAO GAO will support the Agency when Decision is:

Reasonable Supported Documented

Facts control the Outcome Lessons Learned

Document Decisions Contemporaneously Agency & Offeror must follow ground rules set forth in

Solicitation Discussions:

• Need to be meaningful, not misleading• Treat offerors fairly, not equally• CO has a lot of Discretion on Coverage

Focus on using discussions to “maximize Governments ability to get best value

Must discuss weakness – can discuss strengths.• Offerors must listen and be responsive.

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What’s “Hot” OCI

Significant deference to CO plan approval if agency does/documents a thorough review.

Test for “Unequal Access/Unfair Competitive Advantage” (ARINC 77 Fed. Cl. 196 (2007)• Insight beyond that expected of a typical Government

Contractor• K had materials related to SOW/Spec • Some other preferred treatment occurred

Cost Realism- Guard Against Unsupported Claims How to Do it Team Boss B-298865.3 (12/28/07) How Not to do it –Magellan Health Services B-298912 (Jan 5,

2007)• Evaluate Technical with Cost-Do the cost proposed cover the

performance evaluated Past Performance

“Say one thing, do something else” Unequal Effort

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From the Contractor Decision to Protest

Relational Risks– The “Whine” Factor

• Integrity is Key

• Corporate Reputation and Strong Customer Relations Critical to Long term Success

Financial & Time Commitment

• “Outside” Counsel required for “Protected” information$300-$800 per hour X 3

• “Experts”

• Recovery if prevail – 10%

Diversion of Resources Talent

Likelihood of “success” –VERY low

• “Success” = Award of Contract (not protest sustained)

Facts must be Compelling

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From the Contractor The Facts Supporting a Protest

Pre-RFP/RFP

• Equitable access to information

• Appearance of open competition

• “Wired”

Discussions

• Openness

• Serious consideration of Proposal

The Debriefing

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The Facts … The Debrief -- FAR 15.606

Choice Orally or in Writing, by electronic means, or any other method acceptable to the contracting officer

CO normally chairs. Individuals conducting the Evaluations shall provide support. At a Minimum Should Include:

• (1) Evaluation of offeror’s significant weaknesses or deficiencies in the offeror's offer.

• (2) Overall evaluated cost and technical rating of the awardee and the debriefed offeror.

• (3) The overall ranking of each offer.

• (4) A summary of the rationale for the award.

• (5) In the case of a proposal that includes a commercial item that is an end item under the contract, the make and model of the item being provided by the awardee.

• (6) Reasonable responses to relevant questions posed by the debriefed offeror as to whether source selection procedures set forth in the solicitation, applicable regulations, and other applicable authorities were followed by the agency.

Shall not include: • a point-by-point comparison of the debriefed offeror's proposal with other proposals;

• information exempt from disclosure under the Freedom of Information Act, such as trade secrets, privileged or confidential manufacturing processes and techniques, and privileged or confidential commercial and financial information.

9Providing CMMI® Process-Based Solutions

The Debrief

Significant CO Discretion - Wide Variation Air Force –(3 yr., $480 M, Engineering Services)

• SSA Offered Bidders a Face-to- Face Debriefing at Contractor’s Facility

• Led by SSET Chair – Fully engaged in Entire ProcessDebriefing Team included all of the Senior Members of Evaluation Team

• Debriefing Slides were the Exact Slides Presented to the SSA for DecisionProvided to Contractor in advance for Review

Contractor Provided Questions in Advance for Debriefing Team Consideration

Debriefed from SS Slides (with active discussion), then answered K’s written questions and supplemental questions from debrief.

• SSD minimal redactions – easy to see the reason for selection

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The Debrief Significant CO Discretion - Wide Variation (Cont)

NASA – 10 year Engineering Services $140M.• Released Comprehensive “Source Selection Statement” that

included:Source Evaluation Board (SEB) Findings on all Bidders in Advance:

– Ratings on all Factors;

– Strengths & Weaknesses,

– Past Performance Rating,

– Proposed and Probable Costs and a narrative cost analysisSource Selection Decision

– Ranked Offerors with extensive narrative on rationale

– Highlighted where he disagreed with the SEB

– Did a further comparison between the top two, identifying major discriminator

– Short Trade-off analysis – even though selected the high technical, low cost proposal emphasizing high rating for past performance

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The Debrief Significant CO Discretion - Wide Variation (Cont)

Air Force (10 year, Engineering Services, $300M)

• SSDD and SSET Briefing Slides provided in Advance

Written Questions requested

• SSDD –

Apparent “tie” – selection decision support very general

• The Debriefing Guarded

One person did all talking from a script

No SS evaluation team members present

The CO role minimized

Answers to questions – Vague

Permitted a teleconference --Placed phone so those listening could not hear.

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Summary

No Such Thing as “Protest Proof” Position for Success

Fair Source Selection

Experienced SS Eval Team with a Stake in the Results

Contemporaneous Documentation

Extra Caution/Documentation on “Hot” Spots

SSA Decision Based on Verifiable Differences

Maximum Exchange on Debriefing

13Providing CMMI® Process-Based Solutions

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