EP107: How to Navigate a Federal Bid Protest—with Carissa Siebeneck Anderson
So, your small business lost out on a federal bid. But you feel like you were unfairly scored or that the contract requirements were biased. Do you file a protest?
Carissa Siebeneck Anderson is Of Counsel at the Washington DC Office of Birch Horton Bittner & Cherot. She has expertise in the realm of small business government contracting, SBA 8(a), HUBZone, women- and veteran-owned programs, and she regularly represents clients in bid protests.
Prior to joining Birch Horton Bittner & Cherot, Carissa worked as Government & Legislative Affairs Associate for Navajo Nation and served as Management and Program analyst for the US Secret Service.
On this episode of the RFP Success Show, Carissa joins me to discuss federal bid protests, weighing in on the most common reasons for filing a bid protest and why she recommends filing through the Government Accountability Office or GAO.
She explains the role of the protester, the procuring agency and the intervener in a bid protest, exploring when a solicitation or contract can be protested and how much time you have to file.
Listen in for Carissa's advice on deciding whether the cost of a protest is worth it for your small business and navigating the process of filing a federal bid protest.
Key Takeaways
How Carissa’s background in intelligence led to her current focus on government contracts law
The most common reasons for filing a pre-award or post-award bid protest
The 3 places where you can bring a bid protest and why the Government Accountability Office is the most popular venue
The role of an intervener in a bid protest and why the awardee should always file to intervene
When it makes sense to intervene if you’re not the awardee
How to decide whether the cost of filing a bid protest is worth it for your small business
How a bid protest impacts a company’s relationship with the procuring agency
What it means to be an interested party to a bid protest
When a company that’s been disqualified can file a bid protest
How the status of a procuring agency and the nature of the transaction affect whether a solicitation or contract can be protested
How much time you have to file a bid protest from the time you knew of the protest grounds
How a CICA stay requires a federal agency to suspend the contract award/performance while a protest is pending
RFP Success Show EP107 Transcription
You're listening to the RFP Success Show with eight-time author, speaker, and CEO of the RFP Success Company, Lisa Rehurek. Tune in each episode to learn what today's capture and RFP teams are doing to increase their win percentages by up to 20, 30, and even 50% and meet the industry trailblazers that are getting it right. Let's get started.
Lisa Rehurek (00:24):
Hello, everybody. And welcome to the RFP Success Show Podcast. I am your host, Lisa Rehurek, founder and CEO of the RFP Success Company. And I'd like to introduce you to our guest for today's episode, all about federal bid protests. Our guest, her name is Carissa Siebeneck Anderson, and she is an of counsel attorney. This is going to be a mouthful here. Okay. So she is an of counsel attorney for the law firm of Birch Horton Bittner and Cherot in Washington D.C. I think I did that without mispronouncing. And she represents clients from all across the country.
Lisa Rehurek (00:59):
She's been with the firm for over 10 years and her practice focuses on the areas of federal government contracts, Alaska Native, and Native American law, and small business law, as well as other fields. Prior to being an attorney, Carissa worked for the US Intelligence Community first as a government employee and then as an outside consultant, helping to write and implement post-9/11 policy. She helped incorporate business metrics into intelligence community management practices and helped create performance metrics to measure the success of intelligence counter-terrorism and law enforcement priorities at the FBI, the Office of the Director of National Intelligence, ODNI, and others. That is one heck of a resume, Carissa. I want to welcome you to the show.
Carissa Siebeneck Anderson (01:48):
Thank you so much. It is a great pleasure to be here.
Lisa Rehurek (01:51):
We are going to have a great conversation today. The reason that I really wanted to have Carissa on is because she really knows a lot about federal bid protests. She has extensive knowledge in small business government contracting but is an expert on our topic today. And she represents clients in bid protests and has a wealth of knowledge that our audience can really benefit from. I know I'm going to learn a lot. I know high-level bid protest information, but really not the ins and outs of it.
Lisa Rehurek (02:18):
And while we're going to be focusing mostly on federal bid protests, if you're listening and you do state work, keep listening because there's going to be some correlation and we're going to talk where we can about the differences between federal and state. So I'm going to go ahead and dig in and learn a little bit more about Carissa before we get into the meat of it. But, Carissa, as I was reading your bio, it was fascinating to me all of the different things that you've done. You've got a very interesting background working in the US Intelligence Community. You've investigated claims of human rights violations. You've worked for the Navajo Nation and you're a girl scout troop leader.
Carissa Siebeneck Anderson (02:58):
Yes.
Lisa Rehurek (02:58):
Yeah, it's amazing. So tell us how with all of this experience that you have, you decided to focus on government contracts law, regulatory compliance and corporate law.
Carissa Siebeneck Anderson (03:08):
This area of law kind of found me, and it was a good way to marry a lot of the experience that I'd had. So law was a second career for me. I worked as a management consultant for the US Intelligence Community, right after 9/11. First, I worked for the Secret Service as a government employee but I always had wanted to go to law school. And so I decided to go to law school after working a few years in the community, I had a chance to work on some really interesting strategic plans, creating some performance metrics for different agencies within the community. But I was excited to still go to law school after several years of working in the community to help sort of work on post-9/11 strategies.
Carissa Siebeneck Anderson (03:48):
So the areas of government contracts law, and regulatory compliance, those fit really nicely with my experience as a consultant, since I'd been a government contractor myself, as well as a government employee working with government contracts or auditing different programs that had to do with contracts. Regulatory compliance also is similar in some aspects to being a management consultant. There are a lot of things to remember. There's a lot of analysis of business processes and that kind of thing as well. And corporate law is similar to business. I love working with business people. I really enjoy working with small business owners, especially and my Native American and Alaska Native clients. It's just really a pleasure to work with people that are in the business field. And it's helpful to have some good experience to bring to bear from government contracts, both as an attorney, but also as a government contractor myself.
Lisa Rehurek (04:41):
Yeah, thanks for sharing that because I always find it fascinating, these very, what I would consider a very niche topic, right? Especially when we get even further niche with bid protests. So it's always fun to hear the background in-house how somebody has landed, where they land in some of these areas. All right. So let's dig into bid protests. So for any of our listeners that are jumping into bidding on government contracts, Carissa's really joining us today to talk about bid protests and how to navigate them. We're going to talk about a few other things here as well but really focused on the federal bid protests. So if this term is new to you just know that bid protests happen when a responding company feels like they were unfairly scored or that the requirement of the contract are unfair or biased. So this is a great place to dive in, Carissa, what are some of the most common reasons you see for bid protests?
Carissa Siebeneck Anderson (05:37):
Sure. So there are two main categories I would say of bid protests. It's easiest to think about them in terms of pre-award protests and post-award protests. So pre-award protests mostly have to do with the terms of the solicitation. Something maybe being unreasonable or unfair in the way the solicitation is written. And then post-award protests, these are the kind that I see much more likely in my office. This is where somebody's unhappy with being excluded from the competition or more likely has lost out on the award. So there are several different ways that a protest comes up in that area. There could be competitive range determinations where somebody is excluded from the competitive range. It could be evaluation mistakes made on the technical price or past performance information of the bidder. It could be that there were some unstated evaluation criteria that the government used, but weren't listed in the solicitation.
Carissa Siebeneck Anderson (06:36):
It was creating an unfair system that some people were getting sort of credit for providing in the proposal unbidden versus those that weren't told to do it. And then there's cost or price realism. That's coming up more and more often where people are challenging the fact that there may not be realistic costs that are outlined in someone's proposal and that the government might end up paying quite a lot of money in contract modifications if that low bidder party is awarded the contract. Of course, technical evaluations are also part of that. In best value determinations there's quite a lot of discretion for the government. So we do see a lot of bid protests in that area as well. But yeah, there's quite a few in that neighborhood, as far as the pre-award bid protest, usually, it has to do with some kind of requirement in the solicitation that is either missing or is somehow counter to the regulation.
Carissa Siebeneck Anderson (07:30):
So maybe somebody, a contracting officer might have written a solicitation that uses an old regulatory provision that's no longer applicable. And someone sees that wants to bid on it but they realize that particular error is going to cause a problem in the evaluation process. Maybe they're more competitive under the new regulatory regime. So we would encourage people to ask official questions of their contracting officer and try to get the solicitation amended before filing a bid protest if possible, but where that's not possible or the agency refuses to take it seriously, then filing a pre-award bid protest is also an option.
Lisa Rehurek (08:06):
That's fascinating. I actually didn't really know about pre-award protests probably because they're a little bit less common because feels like people would try to get an amendment across before going into a protest there. But that's really interesting. So where can you bring a bid protest? So there's different venues, correct, where you can bring a bid protest? Does it depend on issuing agency?
Carissa Siebeneck Anderson (08:37):
That's correct. So there's three main places that you can bring a bid protest. The procuring agency itself, the Court of Federal Claims, or the GAO, the Government Accountability Office. So the GAO, we know that they write reports. They're an arm under the US Congress. So they're part of the legislative branch, but they've been given special authority to hear bid protests. And GAO is by far the most popular place to bring a bid protest because it tends to be much cheaper and much faster than going to the court of federal claims. And a lot of times people don't choose to avail themselves of the options that are available at the agency because they're afraid they won't get anyone taking the protest as seriously and they may not get people that are objectively considering whatever their particular protest ground is like they would from an outside body outside the agency itself. So I think that's wonderful that we do have three options, but in most cases, I usually recommend going to the GAO.
Lisa Rehurek (09:37):
Okay. And just for a quick reference for those that are listening that do state bids, it's my understanding that state bid protests go to the agency, the bidding agency, is that your understanding as well? There's not as many options. There's just that one option.
Carissa Siebeneck Anderson (09:53):
Yeah. It actually really depends state by state. So we have some options at the federal level, as I just explained, but at the state level, it's infinitely more confusing, frankly. So every state has their own way of deciding bid protests and they may or may not have some similar type of option, like a GAO, right? That's sort of a quasi administrative body that can hear these specific kind of protests and sort of specialize in that area. But other times you're required to go to the agency. And sometimes within the same state, you might even have different bid protest requirements depending on what agency you're procuring from. So some agencies might have a different process than another agency within the same state. So, unfortunately, the answer is the very annoying lawyer answer of it depends.
Lisa Rehurek (10:46):
Right. But that's also it's good to know that, again, just kind of maneuvering through this, if somebody's thinking about bid protesting and doesn't even know where to start, this is such fantastic information. And then who are the parties to a bid protest? So I hear about interveners in bid protests a lot. What does it mean to be and I don't even know if I'm pronouncing that right, intervener and when should contractors consider getting involved as an intervener?
Carissa Siebeneck Anderson (11:16):
Sure. So the two primary parties that we think about are the protestor themselves. So the company bringing the protest that's upset. Then the second party is, of course, the procuring government agency who is basically the defendant in this action defending their own solicitation or their own evaluation, their own award of the contract. So the first one is the protestor. This second one is the procuring agency. Then we usually have the GAO itself is kind of not exactly a party, but they're a stakeholder, obviously in this as the decider. And then the other sort of quasi party here is the intervener. And interveners what that basically means is you're not a direct party to the case at issue, but you have an important stake in what's going to happen or what's going to be decided in that protest. So you can be an intervener in a case in litigation as well.
Carissa Siebeneck Anderson (12:08):
In a GAO bid protest especially, it's extremely important because if you are the awardee and this is a post-award bid protest, there are just a lot of advantages that you as the intervener can gain by being a party to the litigation as an intervener. So I almost always, I'm not sure I can think of any examples where I wouldn't recommend it. If you are the awardee and someone else is protesting the contract award that you have gotten or you are about to receive, it is always a good idea to file to become an intervener in that particular bid protest for a couple of reasons. First, this is your award. So if there's anything that you can do to help keep that award for yourself, of course, that's in your best interest to do.
Carissa Siebeneck Anderson (12:56):
You're going to be relying on the government's attorney to defend its decision about its own evaluation and award to you as the awardee. So it may be advantageous for you to have your own counsel to make sure that government attorney has all of the available information and is making the best argument that can be made based on the facts so that you have the strongest defense for the government agency. Secondly, as an intervener, your competitive information is going to be discussed within the bid protest. So it would be important for you to protect your own information via a protective order, but also have your counsel be able to review any other competitive information so that you can respond with arguments about why your award should be defended and maintained.
Carissa Siebeneck Anderson (13:46):
And we can talk a little bit more about what it means to have a protective order in just a few minutes, but those are the two main reasons that you need to have a council representing your own interests to really augment what the procuring government agency attorney is going to argue. And then secondly, to sort of protect your own competitive information and learn whatever there is to learn about the competitors in the process so that you are well-positioned and well-informed to be able to make the best arguments to defend that award and make sure it stays with your company.
Lisa Rehurek (14:17):
Interesting. Okay. That's super interesting. What about if you're say a third bidder, you're not the one that won, you're not the one that is protesting, but can you get involved because you maybe agree with the protest? Is that considered a potential intervener there as well?
Carissa Siebeneck Anderson (14:36):
That's a good question. So usually the intervener we think of as the awardee, but sometimes an intervener can also be somebody who basically could have brought the protest as well. They have a stake also at issue. If there's a separate grounds for protests though, like if you are a third party and you know somebody has filed a bid protest and you are thinking, "Well, I think I was also misevaluated." The only way to really protect your interests if you think you have been misevaluated as a separate ground is to file your own bid protest because that has to do specifically with you. You can make arguments and bring up claims that might not be brought up by other people, of course, in another case.
Carissa Siebeneck Anderson (15:19):
But you could also try to intervene yourself if you're what we're going to call here, an interested party. And an interested party is sort of, I'm putting in air quotes here, "interested party" because that's the matter that we use on who can bring a bid protest. So whether or not you can intervene, if you're not the awardee would also sort of depend on the circumstances like what part of the solicitation are you in? For example, if the award hasn't been made and you've got five companies in the running, then it may be advantageous to try to intervene because you're still all on even playing field. There isn't a certain awardee. So in that instance, it might make sense to try to intervene even though you're not the awardee yet.
Lisa Rehurek (16:01):
Okay. That makes sense. That makes sense. Okay. We're going to dig a little bit more into who can bring a bid protest and kind of this interested party. We're going to dig a little bit deeper into that. And I want to talk a little bit too about costs of bid protests, but I'm going to take a quick commercial break and we will be right back.
Speaker 1 (16:21):
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Lisa Rehurek (16:48):
All right. We are back with Carissa Siebeneck Anderson. She is an of counsel attorney with the law firm of Birch Horton Bittner and Cherot. And we are talking about federal bid protests. And before we broke, we started kind of talking about what is an interested party. But before we dig into that, I'm thinking about this from a small business perspective and I'm thinking, do you see that it's an easy to do for a small business or I'm thinking about for me, I'm a small business and I'm thinking, "Oh my gosh, the lawyer fees could really add up on this." So do you recommend small businesses doing bid protests or is it generally to cost-prohibitive for them?
Carissa Siebeneck Anderson (17:30):
I would not recommend that a small business not file a bid protest simply because of the cost. I think it always depends on the situation. So it's not uncommon for someone to call me and say, "I think something went wrong in this evaluation process. I think I was treated unfairly and I'm thinking of filing a bid protest." And we'll talk about what are the specific allegations that they have in mind? What do they think happened that wasn't fair? And let's talk about whether or not that would be good grounds for a bid protest and whether or not they're going to be able to get some kind of helpful recovery out of this process. So I think that the cost can vary depending on what form you bring it in, how complicated the protest grounds are, how complicated the contract award itself is.
Carissa Siebeneck Anderson (18:15):
Is this a huge contract or not? So there's a lot of variables there and the cost can be quite expensive. We're probably talking somewhere over $10,000 and it can easily be 20 or $30,000. It can be a lot more than that if we're talking about something much more complex. But there's also the question of, well, what is it that you're looking to get out of this process? So to me, this is a business decision. It comes down to the cost benefits of how much is it likely going to cost me and what is it that I'm looking to get out of this process? And a lot of times I hear clients considering obviously, the likelihood of some kind of corrective action or success in the bid protest process, how much money they've already sunk into their proposals is definitely in their minds, whether or not they think they have a really good chance of sort of withstanding any attacks to their own proposals.
Carissa Siebeneck Anderson (19:05):
In other words, were they a really good candidate for this award? Did write a really tight proposal? Because those things can also disrupt your ability to recover, right? Even if you have a good allegation. If you have mistakes in your own proposal, those can also obviously hurt you in the evaluation process. So it's definitely something that we try to talk with the client specifically about the situation, talk about what the potential estimates are of the cost. Although that's always a little bit difficult and some attorneys, I think also offer some sort of flat rates or flat fees for various stages in the protest process like something to file the protest and then maybe to work on an hourly basis later on during the process. But overall, this is a business decision and we try to give the business people the information that they need to make an informed cost-benefit analysis decision for themselves.
Lisa Rehurek (20:02):
Such great information because I think there's probably people listening that would be afraid to even go there. And I think what I hear you say is it's worth a conversation. Let's have the conversation and then go from there.
Carissa Siebeneck Anderson (20:15):
Absolutely. I think it's always worth the conversation. That's a good way of thinking about it. And it's not just the cost and money, it's also the opportunity cost and time. I mean, for small businesses, they're not going to have people that are dedicated to just responding to things like a bid protest that comes up, of course. So this is something that the business is going to have to figure out how to accomplish and respond to, to drum up information, talk to the attorneys, help review information as it's necessary, all in a pretty quick turnaround time of about a 100 days calendar turnaround time which is great for getting corrective action, but it also can put a lot of pressure timewise on a small business.
Carissa Siebeneck Anderson (20:52):
So it is important to think about the cost benefits of that in those initial stages when you're, "We're all very upset that we didn't win that award, we're feeling like we were treated unfairly." It helps to talk through it objectively with somebody on the outside to evaluate things and then make just more of a sort of cost-benefit business decision about whether or not it makes sense for your business at this time to fight this award.
Lisa Rehurek (21:16):
Yeah. [inaudible 00:21:17] with that emotional it's funny, you said, I love what you're saying here because we get people that'll call us that'll say, "We're thinking about protesting this because they scored us inappropriately on our qualifications. Can you do an objective review and just let us know what you see?" And it's just that they presented their qualifications horribly. So back to your comment about, do they have a tight proposal or not? And they're just emotionally tied to the fact that they didn't get the score that they think that they deserved, but they didn't present well enough to get that score.
Lisa Rehurek (21:52):
So we tell them that's not worth going through a bid protest for, but you can certainly talk to a lawyer about that. And most of the time, just that objective review again, when it's something because their proposal wasn't presented well, or it's an emotional decision. So I love the idea of okay, if it's not just about your proposal was not written really well, and you do have a valid thing, talk to a lawyer because you're going to give a more objective, like you said, business decision versus an emotional decision.
Carissa Siebeneck Anderson (22:23):
Yes. And anytime we're dealing with the possibility of filing a case or filing a lawsuit, whatever it is, it's really hard to take that emotion out of it. But if you do talk to somebody that's sort of outside the company that isn't the one who wrote the proposal, for example, has no personal stake in the fight, it does help to just think through those things and to hear the outside's perspective so that can be included in the information that the business owner has to weigh to make that decision of whether or not to spend more resources and fight it.
Lisa Rehurek (22:52):
Yeah. It's interesting too because I've never actually thought of it this way. A bid protest is essentially a lawsuit, is that correct?
Carissa Siebeneck Anderson (23:00):
Kind of. Yeah. I mean, it's not quite a lawsuit, but in some ways, it's a very similar set of circumstances or a very similar set of considerations that you might have in your brain if you're thinking, should I file a suit? It's really, do you want to fight something, right? Do you want to spend time and money? And frankly, there's also the question of spending a little bit of relationship capital with the agency here. We haven't talked about that yet, but some people are very hesitant to file bid protests because they don't want to be that problem company that filed a bid protest. They want to maintain that really strong, personal working relationship with the government. And sometimes filing a bid protest can get in the way of that. Not always, of course, but if that's the only way to seek a remedy and you've tried the other available methods of remedies that are open to you, which really isn't much in a post-award bid protest situation, then you just have to sort of decide again, is this worth it on balance with the other costs that we've talked about?
Lisa Rehurek (24:01):
It's interesting because I'd written that down as a question to ask you because is I do feel sometimes too, I guess it's with anything when you file a lawsuit or similarly, I always wonder in a protest situation, then you win and then are all the agency personnel really just annoyed with you when you come in as the new contractor? Is there generally hard feelings there, either for the person, I guess generally for the person that brought the protest? Do you see that a lot where there's some hard feelings from the agency?
Carissa Siebeneck Anderson (24:34):
I think it can certainly happen. I mean, we're all people, we're all humans and we all like to be perfect in the business environment, but we are still human. So of course, there can be some hard feelings but I do think that a lot of the experience contracting officers are just sort of used to this also. They understand that it's going to happen, especially on the larger procurements. There's a big stake, there's a lot at stake for the companies that don't win that award. And they've put a lot of money and time into getting that proposal done. And so I think a lot of contracting officers are simply used to the bid protest process. Many of them are kind of planning on building that into their procurement cycle anyway timewise because they are so common for a lot of contracts. So it's probably never welcome, right? But I think a lot of contracting officers are used to it.
Lisa Rehurek (25:28):
Okay. That's interesting. Interesting to know. I mean we're going to circle back now. So I want to go back to right before the commercial break, we kind of started talking about interested party. So, tell our listeners, what does it mean to be an interested party to the protest?
Carissa Siebeneck Anderson (25:45):
Right? So in order to bring a protest, you need to be what? GAO considers an interested party and this varies a little bit between our venues again, but for today, we're still going to focus on GAO because that's the most popular destination for a bid protest. So to be an interested party, the GAO requires that you are an actual or a prospective bidder or offerer, meaning you actually submitted a bid on the specific solicitation that you're protesting. And then in addition to that, you have to have a direct economic interest affected by the award of the contract or the failure to award the contract. A lot of times that means you, the protestor need to be in line for that award and then able to establish that there is a "substantial chance" but for the agency's error that you would have received the award. So let's just talk about that for a second.
Carissa Siebeneck Anderson (26:43):
Usually, what that means, let's talk about a lowest price technically acceptable award, right? Where everybody sort of ranked one, two, three, four, five. If it's a lowest price technically acceptable award, that means the awardee was number one. And if you want to be an interested party, you got to be number two because you need to be next in line to the award. If you get your debriefing, right? And you are not number two, let's say you're number five. Then you would have to argue to the GAO just to let your bid protest be filed initially that not only was there a problem with your proposal, the evaluation of your proposal, and the evaluation of the awardee's proposal, but also everybody between you and that award. So maybe you're arguing that you have one particular, your technical evaluation was off and you should have been higher.
Carissa Siebeneck Anderson (27:35):
And that puts you into spot number three, you still need to have some allegation against number two in order to sort of knock them out of the equation so that you could be considered a "interested party" now if we're talking about a best value determination, things get much more fluid here. So it's a little easier to demonstrate that you're an interested party i.e. more people would potentially be eligible to bring a bid protest if there isn't a clean ranking, but there might be a few contractors that have similar rankings and there isn't a sort of one, two, three, four, five ranked order that the government must go with like they have to in lowest price technically acceptable. So yeah, it's a little bit here.
Lisa Rehurek (28:25):
Yeah, no, I mean, it's fascinating. And when you were talking about what kind of defined an interested party and you said you have to be, I can't remember exactly how you said it, so I'm going to botch that, but you said you have to be a bidder or a perspective. So when you said perspective is that that would be for the pre-award, is that what's meant by perspective?
Carissa Siebeneck Anderson (28:45):
Yes.
Lisa Rehurek (28:46):
Okay.
Carissa Siebeneck Anderson (28:46):
Yes, exactly. So if you aren't qualified for the solicitation that you would like to protest, then in all likelihood, you will not be considered a "interested party" to be able to file that protest, unless you're arguing specifically that you should be eligible because there's something inherently wrong with the solicitation. So that's a rather tough hill to climb that could potentially happen but yes, I would consider yourself a prospective bidder is necessary. You just need to be a qualified bidder if you're going to protest a solicitation.
Lisa Rehurek (29:21):
Gotcha. So what if I get disqualified? Can I protest because I got disqualified? [crosstalk 00:29:28].
Carissa Siebeneck Anderson (29:28):
It may depend on why you were disqualified. Usually, if you have been eliminated from the competitive range and you think there was an error made in the evaluation that led to you being eliminated from the competitive range, you could potentially protest that action. Even prior to the actual award being made. Maybe the government is narrowing it down to the top 5 or the top 10 contractors and you've been eliminated from the competitive range, that's possible to protest. Maybe not in every circumstance, but in some circumstances.
Lisa Rehurek (29:58):
Is there a certain type of solicitation or contract that can be protested or some that cannot be protested or is everything free game?
Carissa Siebeneck Anderson (30:07):
Yeah, there's actually quite a few requirements that sort of dictate whether or not a bid protest can be filed. And a lot of times this has to do with whether or not GAO or whatever venue you're choosing has jurisdiction to hear and decide the type of protests that's coming up. So that is tied to sort of two aspects of the situation. The first is the status of the procuring agency. And then the second aspect there is the nature or the type of transaction. So bid protests usually have to be protesting a procurement action that was done by an executive agency. There are a few exceptions to that but that's generally the case. So you just want to make sure that there's not a reason why you can't bring a bid protest against a certain agency because they rely on maybe a different hearing authority, or they're an agency that's excluded from the bid protest process.
Carissa Siebeneck Anderson (31:07):
For example, there's a few agencies like the US Postal Service or the Federal Aviation Administration that are excluded from the sort of traditional GAO bid protest process. And then as far as the nature of the transaction, this is where you start getting into a lot of details that the lawyers would probably have to help figure out. But generally here that the protestor must allege some kind of violation of a procurement statute or regulation. And the GAO will also review allegations of unreasonable agency actions. So if there was an unreasonable determination where GAO or where the procuring agency, excuse me, was sort of straying from what the evaluation criteria that were outlined in the solicitation, that would be a good grounds to bring a bid protest, the solicitation and all the requirements in that the agency must follow. Of course, the agency also needs to follow the statute and whatever regulations are relevant. If the agency is not playing by those rules, including the rules that it made up in this solicitation, then that can be grounds for a bid protest.
Carissa Siebeneck Anderson (32:11):
They also need to make sure that the agency is acting reasonably. So they cannot treat contractor A differently than contractor B when they're evaluating a proposal. So if somebody has a person that has let's say a key personnel that has 10 years of experience and they give them an exceptional rating and another person has a similar person that's key personnel with 10 years of experience, and they get an acceptable rating, that's not being a reasonable agency, that's not taking a reasonable approach to evaluating two similar criteria within the same proposals. So that's the kind of thing that we're looking for. It's also helpful to think about sort of who can't bring a bid protest here. So the big one to remember here is that subcontractors cannot bring bid protests. They don't have standing, they don't have grounds to bring bid protests.
Lisa Rehurek (33:05):
That's really good to know-
Carissa Siebeneck Anderson (33:06):
And then-
Lisa Rehurek (33:06):
.... too especially in the federal space, right? There's so much of that. Okay.
Carissa Siebeneck Anderson (33:10):
Yes. And then the last thing I will mention is task and delivery orders. So the government has moved to offering many, many procurements and these multiple award IDIQ kind of situations. So the rules are a little bit different when you're talking about whether or not you can protest a specific order within a multiple award IDIQ kind of environment contract. So there are different rules for civilian agencies versus defense. And that's usually about $10 million is what the task order would need to exceed $10 million for a civilian agency task order, in order for GAO to have jurisdiction to hear a bid protest on that task order. Whereas for the defense agencies, the task order has to exceed $25 million. So it has to be a pretty big task order for people to be able to file a bid protest there at DOD.
Lisa Rehurek (34:06):
Interesting. Okay. And then what about timing? Is that pretty standard how much time you have to file a bid protest or is it dictated based on the solicitation?
Carissa Siebeneck Anderson (34:17):
The timing is also a bit complicated. It depends on what kind of protest we're filing. So again, pre-award versus post-award matters here. Let's talk about the easier one first. For pre-award protests, so this is again where we're talking about there's a problem with the solicitation. Typically, those pre-award bid protests need to be submitted prior to when the sort of final bids are expected, what the deadline is for final proposals. But occasionally it's within 10 days of learning about the protest ground which is again, similar to what the post-award environment is. Sort of the standard general rule with many exceptions built-in, of course, is you have about 10 days in order to file a bid protest. And it's 10 days from the time you knew of the bid protest grounds, or you should have known, so you knew, or you should have known that the ground was available.
Carissa Siebeneck Anderson (35:22):
And that is pretty tricky, right? Because if information is available but somebody didn't read the email or read something, they didn't notice it right away. Then you may lose your opportunity to file a bid protest if that clock has expired. So timeliness and understanding the rules here, understanding what the deadlines are that might apply to different types of bid protests is really important so that if you do think you have grounds for a bid protest when you have to file, and how the process works. So you don't inadvertently give up on your opportunity to file that bid protest. There's also CICA stays, which we haven't talked about just yet, but those also impact the timing if you're looking to stay the performance of the contract.
Lisa Rehurek (36:07):
Well, let's talk about that because I don't even know what a CICA stay is, or I've not even heard that term, but tell us what a CICA stay is.
Carissa Siebeneck Anderson (36:14):
A CICA a or the Competition in Contracting Act, a CICA stay is when you are trying to basically prevent the agency from either making an award or stop a performance. And the idea here is that CICA requires federal agencies to suspend the contract award or performance while the protest is pending at the GAO. And that gives the protestor and the agency, the opportunity to resolve whatever the grounds or the protests are before the agency and the contract are well underway with the new awardee. So it sort of creates an incentive for the government to resolve this quickly and take it seriously so that they can get back to business and get the contract act awarded or start performance up again.
Carissa Siebeneck Anderson (37:01):
It is possible for the agency to override the automatic stay which does happen in limited circumstances. And it comes down to sort of a multiple part test here, but basically, it's if the government has urgent and compelling circumstances, if it's really in the best interest of the government, talking about emergency needs or warfighters or things that really services that can't be interrupted without some significant consequences, then the government can certainly override that CICA stay. And the GAO would continue to hear the protest but performance would go on while the protest is pending.
Lisa Rehurek (37:37):
Is that a separate filing or is it is just part of the bid protest process?
Carissa Siebeneck Anderson (37:41):
It's not a separate filing. It is part of the bid protest process, but it does change the timing deadlines on when you're expected to file. And you do have to ask for the CICA stay, specifically in the bid protest. And this is where we get in also to sort of the concept of required debriefings. So typically, you have about three days to ask for a debriefing, and if it's required, then you have five days to file your protest after the debriefing is concluded which is a little different than our 10 days from the day you knew or should have known about that protest ground.
Lisa Rehurek (38:19):
Yes. And all reasons why a lawyer needs to be involved in the initial conversations because it's confusing, right? Like just this general information that we're talking about, I'm following along, but I'm like, Man, this could get confusing pretty quickly especially again, as you were talking about earlier with smaller businesses when they don't have a ton of resources internally to help with this. So we're going to conclude this episode for today, but we're going to come back with Carissa for a second episode because we've got a lot more to talk about around debriefings, what that looks like, and then just some general contracts questions. So, Carissa, before we conclude for today, if somebody needs to get in touch with you, they want to talk about a bid protest, what's the best way for them to reach you?
Carissa Siebeneck Anderson (39:07):
Sure. So going through my office at Birch Horton Bittner and Cherot, I can be reached via email at canderson@bhb.com. So that's canderson@bhb.com and I work for the Washington D.C. Office of Birch Horton Bittner and Cherot. So I hope you guys will reach out if you have any questions.
Lisa Rehurek (39:26):
Definitely. And we'll put that information in the show notes. So Carissa, I'm so happy to have you here. We're going to see you back here for the next episode. Thank you, everybody, for listening, you have been listening to the RFP Success Show with your host Lisa Rehurek and we'll see you on the next one.
Speaker 1 (39:42):
This has been another episode of the RFP Success Show with Lisa Rehurek, eight-time author, speaker, and CEO of the RFP Success Company. Thank you for joining us. If you have feedback on today's episode, email us at podcast@rffpsuccess.com. No matter your business size industry, if you have an in-house RFP team or need outside support, the RFP Success Company helps increase RFP win ratios by 10, 20, and even 50% learn more at the rfpsuccesscompany.com.