EP108: The Federal Bid Protest Process, from Debrief to Decision—with Carissa Siebeneck Anderson
Let's say you have grounds to file a federal bid protest.
What does the process look like? Are there steps your company can take to prepare now, before a bid protest comes up?
Carissa Siebeneck Anderson serves as Of Counsel at Birch Horton Bittner & Cherot, and her practice focuses on federal bid protests, government contracts, regulatory compliance and corporate law.
Carissa has extensive knowledge around SBA 8(a), HUBZone, women- and veteran-owned programs, and before joining Birch Horton Bittner & Cherot in 2011, Carissa worked for Navajo Nation and the US Intelligence Community.
On this episode of the RFP Success Show, Carissa is back to walk us through the federal bid protest process, weighing in on why you should always ask for a debrief from the agency—even when you win.
Carissa discusses what remedies are available to a protestor and how likely it is for an agency to take corrective action when a federal bid protest is filed.
Listen in for insight on finding a lawyer with expertise in government contracts and learn what your business can do TODAY to prepare for a future federal bid protest.
Key Takeaways
What it means to get a debrief from the federal government
Why it's ALWAYS a good idea to ask for a debrief
Why Carissa suggests being strategic about when you request your debriefing
When a government agency can decline to give you a debriefing
What remedies are available to a protestor and how likely it is for a government agency to take 'corrective action'
A high-level overview of the bid protest process
How the GAO commits to issuing a decision on a bid protest in 100 days
What differentiates a size protest from a bid protest
How every state has its own bid protest process and why you should reach out to state procurement officials and/or a lawyer with expertise in government contracts for more information
How you can file a federal bid protest without a lawyer (but Carissa doesn't recommend it)
What companies can do to prepare NOW before a bid protest comes up
How Carissa supports small businesses beyond the federal bid protest process
RFP Success Show EP108 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):
All right, everybody. Welcome to The RFP Success Show Podcast. I am your host, Lisa Rehurek, founder and CEO of The RFP Success Company. We are back today with our guest from our last episode, Carissa Siebeneck Anderson. She is of counsel attorney for the law firm of Birch Horton Bittner & Cherot. We've been talking about federal bid protests. So Carissa, welcome back to the podcast.
Carissa Siebeneck Anderson (00:51):
Thank you. It's a great pleasure to be here.
Lisa Rehurek (00:53):
It has been really fascinating to hear all about bid protests. I and my company work most mostly in the state space and we see bid protests, but I think that they're much more prevalent in the federal space, probably because of the size of the contracts that we're working with. But it's been really interesting to learn all about it. In the last episode, we focused very much on bid protests, and obviously what we're going to talk about today is a continuation of that. But where we left off was really kind of digging into debriefings. I want to go back to basics and just say, what are the debrief, and what does it mean to get a debrief with the federal government or the state government for that matter?
Carissa Siebeneck Anderson (01:38):
Sure. So getting a debriefing means you've asked the government to explain why you as the unsuccessful offerer did not get the award. This is a great way to incorporate lessons learned, to get feedback, I would advise companies to always ask for a debrief. Sometimes the government is required to give that debrief and other times they may not be, but I think it's always a good idea to ask for it.
Lisa Rehurek (02:04):
Yeah. I agree with you. On the last episode, we were kind of talking about timing of a bid protest. Do we need to have a debrief before we file a bid protest?
Carissa Siebeneck Anderson (02:17):
Again, the answer is, it depends. So typically I would say yes. If a debriefing is required, and it typically is required for FAR Part 15 procurements, the most common type of procurement, then you have three days to request your debriefing from the government. I typically advise people to be very strategic about when they ask for that debrief. Most people, they get that notice that they were not the successful offerer, and they want to pick up the phone and call the government, and my suggestion is, hold off. You've got three days to call them. Three days to think about what your questions are. Three days to talk to counsel if you think you might have grounds for a bid protest, which adds three more days to filing a protest in the big picture here. So, be strategic about when you request your debriefing, but do make sure that you do request it within that three days as is required for the debriefings that are required by the government.
Lisa Rehurek (03:13):
Do they push you off? Do they have a requirement to give the debriefing in a certain amount of time or can they say, "I'm not available for three weeks so we'll do it then." Which message [crosstalk 00:03:24]
Carissa Siebeneck Anderson (03:23):
That's a good question. Yes. Sometimes the government does try to put things off a little bit, but frankly it's usually in their best interest to get those debriefings done in a very expedited way because the sooner the debriefings are done, the sooner they know if they're going to have any protests filed and the sooner they can sort of finish out the pre-award or award process and move on with the performance of the contract.
Carissa Siebeneck Anderson (03:48):
Oftentimes we see the government having written debriefings or debriefing materials prepared immediately, even prior to when they were determining award decisions so there is no delay between when you ask for the debriefing and when you get it. So I would recommend always asking for it, but do be strategic about when you ask for it. It will provide you a wealth of information and it can dictate how the timing works for filing the bid protest later as well.
Lisa Rehurek (04:16):
Would you recommend if somebody's going to do a debriefing that they ... Let's say they want to reach out to you to talk about a bid protest ... Should they talk to you before they do that debrief? Because I'm guessing that you all would provide a little bit of guidance around what kind of questions to ask.
Carissa Siebeneck Anderson (04:33):
Yes, I do think it's helpful to call your attorney as early in the process as possible so that you can talk through what you think your potential protest grounds are and so that we can explain to the client sort of the timing of how things might work out and sort of make a plan A, plan B, depending on how the agency responds and how long it takes them to respond. Sometimes you might have to wait a week or two or even three weeks for a debriefing. That does occasionally happen, but it's getting to be a little more unusual. Nowadays, I think we see rocket debriefings that are happening very, very quickly in the hopes that the agency is hoping, "Let's get this finished. Let's get this done, and move on to the performance stage of the process."
Lisa Rehurek (05:17):
So they can decline a debriefing also, right? Wonder what circumstances can they decline a debriefing?
Carissa Siebeneck Anderson (05:26):
So certain procurements under the regulations require a debriefing if the government is asked for that debriefing within the certain amount of time, within that three days. For certain other procurements that might not require a debriefing, agencies often still will provide some kind of debriefing. It may not be quite as robust as the ones that are required or it could be, so there's no harm ever in asking because this is also a great opportunity to get feedback from the government.
Lisa Rehurek (05:58):
We recommend it too under every circumstance. Always ask for a debriefing, whether it's federal government, state, local, anything, because as you said, it's just a really great idea. We actually even recommend asking for a debriefing when you win just to get some feedback on what they liked most about your proposal.
Carissa Siebeneck Anderson (06:18):
I heartily agree with that. You may not get it, but you should always ask for that. As a former management consultant, I'm always a big believer in getting feedback and incorporating lessons learned into our business processes, making ourselves work smarter.
Lisa Rehurek (06:35):
Yes.
Carissa Siebeneck Anderson (06:35):
So I think a briefing process is super important whether you are the losing bidder or even if you're the awardee because you want to know, "Why did I win?" Maybe there were some flaws in your proposal, but there were a lot more flaws in somebody else's. You just don't know for sure, and if you ask that question, I think you will get some good qualitative responses from the government on maybe how you were a little more competitive than somebody else or how your proposal was a little more competitive just in the way it was written or presented. It's helpful to know those things so that you can include those things in the next round of proposals. It's especially important if you've got more than one person that's in charge of writing your proposals so that you can put into practice or operationalize great checklists, whatever it might be, for everybody to sort of use those winning strategies to get the next award.
Lisa Rehurek (07:28):
Yes. Such great advice because we'll have clients that come to us that they'll say, "This is our model proposal because we won it," and we'll look at the proposal and think, "Well, you were probably just the best of the worst because this is not a winning proposal. If you were up against bigger, better proposals, you would've lost."
Carissa Siebeneck Anderson (07:50):
Right. It's tough love sometimes. It may be hard to hear, but it's good for us to hear it.
Lisa Rehurek (07:58):
Absolutely. Absolutely. Okay. Let's talk about remedies. What does that mean? What does remedy mean, and also what types of remedies are available if a protester wins a GAO bid protest?
Carissa Siebeneck Anderson (08:09):
Sure. So this is a little different from a lawsuit. So in a GAO bid protest, we have the protester and the government agency. Those are the two primary parties here, and the recovery that's available through the GAO bid protest process is also a little different than our sort of traditional litigation that we know of. We're not talking about a cash award here. We're not talking about the GAO saying, "Oh, you made a mistake, procuring agency. You have to award it to contractor A." They can't do that.
Carissa Siebeneck Anderson (08:41):
What can they do? Well, there's a few different remedies that can happen here. Of course, the GAO can sort of decide the case on the merits. If they rule in favor of the protester, it's called sustaining the protest, and that happens in a relatively small percentage of cases. For the protests that make it all the way to the stage where GAO actually decides the case, about 15% of those cases are decided in favor of the protester, are sustained. But there's a lot higher chances of some come kind of success being realized in the bid protest process than just getting a winning decision from the GAO.
Carissa Siebeneck Anderson (09:21):
Probably the most important action that can happen from a GAO bid protest is the corrective action. So if an agency is notified that you think there were certain problems in the procurement process, you were evaluated unfairly or there was a mistake made in evaluating the awardee's proposal, as sort of the discovery happens through the bid protest process very quickly, the agency might agree with you. They might think, "Hmm, I see some weird stuff that was happening in the evaluations here. Let's take another look," and the agency say, "GAO, we are going to take corrective action. We're going to go back and reevaluate the proposals," or, "We're going to go back and fix that part of the solicitation." The agency basically takes it upon themselves independently to take the information that they've learned and take a corrective action on their own without anybody telling them to do that.
Carissa Siebeneck Anderson (10:17):
That happens in about 50% of the cases that are filed with GAO. So of all the protests that are filed, the agency will just independently decide, "I'm going to take some kind of corrective action to address the problems that the protester made us aware of." That's great. I mean, 50% of getting some kind of action done is fantastic. Now, if the GAO takes that corrective action and does the reevaluation of proposals, let's say, that doesn't necessarily mean you are going to win the contract. It depends on what the problem was and what the nature of the situation was and whether or not there were grounds there to change their minds. But getting the agency to at least take another look at the proposals, to take a different approach or to maybe take a more consistent approach in how they evaluate different proposals, that is sort of half the battle.
Carissa Siebeneck Anderson (11:18):
So again, this goes back to, do you have a really strong proposal? Are you sure you've complied with all the aspects of the solicitation? Are you sure you're very competitive on past performance, so there's no holes, if you will, in your proposal? That's again really important here, because if you can get the agency to take that corrective action, it's going to come down to well, is there a reason for them to change their minds? That does happen. So I think the ultimate win here in the bid protest situation is, "Well, I didn't have the contract award, and now I do," as the protester, but that can't happen directly from GAO. GAO can make a recommendation to the agency to take some kind of corrective action or the agency can just decide anywhere in the bid protest process to take that corrective action on their own. Then what you're basically getting is another bite at the apple. The agency's going to take one more chance to reevaluate something or do something a little better around the second time to make sure there's no errors in that process.
Carissa Siebeneck Anderson (12:21):
So those are the main remedies that we're looking for. But if the GAO does go all the way to making a decision and it does make some kind of recommendation to the agency, that can include of things like suggesting that the agency refrain from exercising options if the contract is already under performance, they could recommend terminating the contract or recompeting the contract. Maybe it's issuing a new or revised solicitation to correct some issues that were in the solicitation itself. In very few cases, they might even recommend paying some of the protester's costs. But that is a pretty rare scenario for them to make that recommendation. Then there's some limits on how much you could actually recover from the protesting costs.
Carissa Siebeneck Anderson (13:05):
But the reason I'm using the word recommendation from the GAO is important here. The GAO can't control an executive agency because this is a separation of powers, constitutional doctrine issue here. But the GAO is very persuasive to most agencies. Well over 90% of the time agencies typically listen to whatever the GAO recommendation is and they will implement it. The Court of Federal Claims would have binding jurisdiction, but you might have to spend a lot more money and a lot more time to get a result from the Court of Federal Claims, whereas the GAO, typically you'll be able to get the same result if you get a favorable decision on the merits of the bid protest case itself.
Lisa Rehurek (13:50):
Wow. There is so much great information, Carissa, in everything that we're talking about. What I want to do, if you don't mind, is just take a little bit of a step back. We've probably talked about all of this between the last episode and this episode, but can you kind of just give a high-level overview of the bid protest process? Again, I know we've talked about pieces of this, but let's pull it together. Perhaps focusing on the GAO's bid protest process since that's the most common venue in the federal space. So can you kind of give a high-level overview of what that bid protest process looks like?
Carissa Siebeneck Anderson (14:23):
Sure. So it would start with the sort of consideration and then the filing of the protest. We talked a good bit about sort of the considerations that might go into whether or not you consider filing. So once the filing is done with the GAO, then they would also notify the agency, and the agency would then notify the contracting officer. They may also take actions related to a protective order. So if the protester requested a protective order be put in place, which is basically an order saying that, "We're going to protect the competitive information that might be discussed or in any of the protest documents," then they would get that process started for the protective order itself. The protective order would go into place, and then you would have to have your attorneys apply to be admitted to that protective order and sort of set up, go through that short process. That might take a few extra days or a week at the very most in order to get sort of admitted into the protective order.
Carissa Siebeneck Anderson (15:24):
The next stage, you might see intervention by other offerers. So the agency might be notifying the awardee, for example, that there is a bid protest pending, perhaps there's a stay of the award or of performance. Once that awardee is notified, they may be filing to be an intervener. If it's more at the competitive stage of the process, they may be notifying the other prospective bidders as well or actual bidders that are in the competitive range so they might also consider intervening. Once we get past that stage, then the government might put in some kind of request for dismissal. That's typically where the procuring agency attorney is going to say, "Look, we don't think that the protester has good grounds for a protest. GAO, we think you need to just dismiss this protest, because they don't really have a right to be here. They're not an interested party. They don't have good grounds. We didn't do anything wrong." So this is the stage where the government might basically try to kick out the protest very early on in the process.
Carissa Siebeneck Anderson (16:24):
Then the agency would be required to file a report. So the agency might take corrective action at this stage already, or they could do it after they've exchanged information. But in response to any bid protest that's filed, the agency has to put together a pretty decent collection of documents and a legal response to all the allegations that are made. That's a significant undertaking of paper and process to get that done. So sometimes if the agency sort of agrees with the allegations right off the bat, they see the error of their ways, in other words, from the bid protest the agency might decide early on in the process, "Well, we'll just take corrective action, and we'll we'll fix this. We agree there might be an issue here. Let's do a reevaluation of the proposals," or whatever that appropriate action is.
Carissa Siebeneck Anderson (17:11):
Then the next stage, this could be before or after the corrective action, the agency report and document production. That's where the agency is producing that big document package that goes through sort of like a legal memorandum from agency counsel responding to each of the allegations that was in the bid protest. They would likely provide a lot of the supporting documents. This is where a lot of the documents from the evaluation would come through. Again, it would be important for the counsel to be admitted to the protective order because if there is any competitive information, which of course there's going to be if we're talking about a post-award bid protest, which comes down to a lot of competitive information, you're going to want to have counsel that are able to be admitted to the protective order, which means they're able to see the competitive information, the confidential business information of your competitors.
Carissa Siebeneck Anderson (18:02):
These protective orders exist because they're basically trying to prevent competitors directly from seeing each other's confidential business information, but they still want people to be able to have enough transparency into what happened that are themselves disinterested. So I as your outside counsel would be able to be read into a protective order and see the information that might be about a competitor's proposal, but GAO and the competitor does not want another competitor directly. So my client couldn't see that competitive information about a competitor, but I could whenever we're talking about a protective order. So that's why it's also important to have counsel if we're talking about any kind of bid protest where there is confidential business information. It helps to be able to see all the information that is available. If you aren't allowed to see it yourself, then your counsel is the only option.
Carissa Siebeneck Anderson (18:56):
After the agency report is filed, then the protester has the opportunity to provide comments. That's kind of like the reply. The protest is filed, the agency responds with its report and memorandum, and then now we're back to the protester providing some kind of reply to whatever the agency said in its memorandum about these allegations. There also could be additional grounds that come up. So let's say you have two protest grounds initially, and then you get the agency report and the legal memorandum from the agency and it goes through all the information that's relevant to your allegations. As part of that review, your attorney sees, "Hmm, there might also be another ground or two here that we didn't even know about, but is apparent from the information that we've been provided by the agency."
Carissa Siebeneck Anderson (19:44):
In that instance, you might actually supplement your bid protest and add some additional allegations or additional grounds for your bid protest. That could trigger another little mini cycle of the agency providing additional documents about that new allegation that you just became aware of. Because again, it's 10 days from the date that you knew or should have known of the bid protest ground and you're just learning about that new information now. But it does have to be new.
Carissa Siebeneck Anderson (20:12):
Then following that, there might be a GAO hearing, but again, that's extremely unusual. That doesn't happen very often where people will actually appear in person and have a hearing of some kind. Then finally, we would move to the GAO decision phase where GAO would make a decision on the merits. So if a protest makes it to this stage of the GAO actually issuing a decision, about 15% of the protests that make it to this stage are sustained. That's a pretty small percent. That means 85% are not sustained. So a lot of them are eliminated, but again, if the agency thinks there's a problem, they've probably taken corrective action earlier in the process, and so the case just comes off the table altogether.
Carissa Siebeneck Anderson (20:56):
So it's a little unusual for the agency to just sort of dig their heels in, not take corrective action and interrupt this bid protest process. Then the protester gets all the way to the end and the GAO still agrees with them. 15% sounds really harsh. It is harsh, but there's a lot of additional remedies and corrective action that's being taken in about 50% of the cases so there's a lot more opportunities for a "win" here than it sounds like.
Lisa Rehurek (21:24):
Right. What is the timeframe of this? Is there a general timeframe or is that just a loaded question?
Carissa Siebeneck Anderson (21:30):
GAO tries to have their decisions complete in 100 days. So from the date you file the bid protest to the date that GAO issues a decision on the merits if your case makes it all the way to that point, GAO sort of commits to having best efforts to get a decision done in 100 days, which is very fast compared to Court of Federal Claims or really litigation in any traditional court. 100 days is very fast. So there's a lot of work that goes into those 100 days, but it also enables the agency, the protester and the awardee to also have a quick resolution and hopefully get started on whoever is going to be performing.
Lisa Rehurek (22:16):
There is just so much to this. It's so fascinating. We're going to take a quick commercial break, and we'll be right back.
Speaker 1 (22:22):
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Lisa Rehurek (22:45):
All right, everybody. Welcome back from our quick little commercial break there. Carissa, thank you for that very thorough process overview, just to understand, because again between last episode and this episode, there's a lot of moving pieces that we're talking about. I think for myself for sure and our listeners, understanding that process overview is very helpful. So there's also something called a size protest. So what's the difference between a size protest and a bid protest?
Carissa Siebeneck Anderson (23:15):
Yes, a size protest has to do with the actual size of a small business. So whether or not a business is considered small under the NAICS code that is assigned to the contract at issue. Size protests are exclusively under the jurisdiction of SBA, so the Office of Hearings and Appeals that's specific to SBA is the only body that can decide a size protest. That process operates completely differently and independently from a bid protest process. Sometimes we do see people confusing these two and they can overlap at times, but it's important to remember that a size protest is just about whether or not a business is considered small and is sort of eligible for that small business contract of whatever the set aside is. Whereas a bid protest is objecting to a sort of flaw, an error somewhere in the procurement process itself.
Lisa Rehurek (24:10):
Oh, that's interesting. Yeah. I was not aware of a size protest at all. That's really fascinating. I'm going to actually go backwards real quick onto the process overview. What we were talking about on process overview was very specific to GAO's bid protest process. If we're looking at state government bid protests, my guess is that every state has their own process. Is that a fair statement?
Carissa Siebeneck Anderson (24:35):
They do. As we talked about a little bit before each state varies, has their very own way of handling bid protests. Even within the states, some states, their bid protest process varies depending on which agency you were doing business with. So it's very confusing.
Lisa Rehurek (24:53):
Yeah, absolutely. In that case, finding a lawyer in that state that specializes in it and/or reaching out to procurement to get a better understanding of their process, is that one of the two best courses of action for somebody to take?
Carissa Siebeneck Anderson (25:08):
Yeah. I think those are both great ideas. Utilizing the procurement officials or any small business offices that might be specific to that state, anybody that you can sort of call up and ask for help or ask, "I'm a new business in this area. Can you explain this to me?" Or, "I've never filed a bid protest before. I'm not really sure how to do this." Just sort of ask for assistance. Ask for information. The worst they can do is say no. Then of course, if you feel like you really have grounds and you need to move quickly, of course, then I would suggest seeking counsel that's specific to your state that has expertise specifically in the area of government contracts and hopefully state-specific bid protests that you are dealing with because the rules vary dramatically. It's important to have somebody that is an expert in this area so they know how to respond, where to respond and when to respond.
Lisa Rehurek (26:03):
Okay. Great. Great advice. Thank you. So legally speaking, what do companies need to know prior to any federal bid protests? There are things that they can do to prepare in advance. Should they do this without a lawyer? I think that is a resounding no. Don't try to do this yourself. Give us a little bit about what they should prep for and what do they need to know.
Carissa Siebeneck Anderson (26:27):
Sure. So I'll take the lawyer question first. Can you file a federal bid protest without a lawyer? Yes, you can. Should you file a bid protest without a lawyer? I would not recommend it. You can tell from just what we've talked about today, there are numerous pitfalls here, lots of rules about who can bring the protest and what has to be included in the protest and really maybe most difficult, when you have to bring the protest. The timing deadlines are pretty fast and brutal. So it really helps to have an attorney who understands that from the get-go and can advise you and move forward quickly with putting together your protest on the right schedule. So I would definitely advise you to consider getting counsel if you're serious about filing a bid protest.
Carissa Siebeneck Anderson (27:16):
If you don't have counsel for whatever reason, if you decide not to get counsel, you can file a bid protest. I would definitely consider with the agency or with GAO then because it's going to be a more informal process. It won't be as intimidating from sort of a legal procedural standpoint as it would at the Court of Federal Claims. So GAO or agency would be my suggestion to go forward then. Just realize that you may be disadvantaged at various parts of the process because a protective order is likely going to be either requested by yourself or requested by the awardee so that their confidential business information remains confidential with non-competitor's eyes. If you are the owner of the company, if you're a business development person within that company, GAO is probably not going to let you be read into that protective order. You're not going to be allowed to see that confidential business information, which is going to put you at a serious disadvantage to review the agency records that might be relevant to your allegations.
Carissa Siebeneck Anderson (28:14):
If it's a pre-award bid protest, again, I'd advise that you try to take care of remedying that error. Before you file a bid protest about that solicitation error, try to do it through an official question to your contracting officer or something where they can amend the solicitation. But if that doesn't work, you could consider filing a pre-award bid protest. It's still a complicated process, but you're not quite as disadvantaged as a pre-award protester as you would be in the post-award situation where you're much more likely to deal with competitive information that you wouldn't be able to see and only your counsel would be able to see. So yeah, definitely recommend counsel if you're serious about getting some kind of recovery out of the bid protest process.
Carissa Siebeneck Anderson (28:57):
As far as what things would I recommend that you do to prepare for bid protests in advance, I love this question. This is a great question because we all want to know how to avoid having our reward protested or be ready to go if we think that we were wronged somehow in this process. So yes, there is definitely things that companies can do to make sure that they are prepared now before a bid protest ever comes up.
Carissa Siebeneck Anderson (29:24):
So the first thing I would suggest is to be educated on the bid protest process itself, understand the big picture, especially understanding the timing deadlines, how fast we have to turn around things, timing deadlines for debriefs and the filing deadlines. You also want to be educated about the kind of grounds, like what can you file a bid protest about? What grounds make it a good idea for me to file a bid protest? That's something that you'll want to educate your management on, your compliance team on, and also your business development teams, the guys who are putting together your proposals.
Carissa Siebeneck Anderson (30:01):
They are on the front lines of the proposal process. They're going to know the ins and outs of that proposal. They need to write very strong proposals. They need to understand how people can file protests that might feed off of chinks in the armor of that proposal, and they also need to understand maybe where there could have been an error in the evaluation. Maybe the business development person knows, "Gosh, we have the best people in the business doing this. We should have gotten the highest possible rating on our evaluation for the technical," for example, "Because we have the most experience of anybody in the industry and the best team. There's just no way that we should have been lower than someone on a technical evaluation."
Carissa Siebeneck Anderson (30:45):
If you get your debrief and you see that you weren't the highest, somebody else beat you out, well, your BD people are going to be really well-positioned to understand and spot that as a problem. That's probably an error. Somebody else either was evaluated too highly or we were evaluated too low or both. So educating your business development teams on the bid protest process and what kind of grounds are possible for bid protests is really important.
Carissa Siebeneck Anderson (31:12):
Also, we talked a little bit about this before, writing and confirming that you have watertight proposals so your company can withstand a bid protest, that's extremely, extremely important. Make sure that your BD guys have serious attention to detail. Make sure there's double and triple and quadruple checking going on, that every single requirement in that solicitation has been addressed fully, completely, like stupid proof way. It's exactly where it's supposed to be. It's labeled that way. It makes it really easy for that government contracting officer to see that you have clearly responded to every requirement in that solicitation.
Carissa Siebeneck Anderson (31:51):
Then fourth, I would say, find a lawyer now so that if you ever do have to file a bid protest or if you're an intervener and you want to intervene in a bid protest because you're maybe an awardee where there's been a bid protest, I suggest that you sort of go find a lawyer that seems right to you, talk with them, get an understanding of the process so that you have them in your contacts. You feel comfortable with them, you understand the rate structure, and you can literally just pick up the phone and call them and say, "Look, I think I might have a bid protest. Can we talk through what the situation is real quick and can you give me some advice?"
Carissa Siebeneck Anderson (32:28):
It's super important to have that person already at the ready so you don't waste time when you only have a handful of days to file a bid protest. Don't waste time looking for a lawyer or finding a lawyer that is available or that you feel comfortable with. Do that now, so that you have a person sort of in your contacts ready to go, that you can call at a moment's notice.
Lisa Rehurek (32:51):
That's such great advice. We talked about this earlier, but I want to come back to it, if you are not the bid protester but the company that won the protest, I mean, you need a lawyer as well because you've kind of got to defend yourself. Is that a correct statement?
Carissa Siebeneck Anderson (33:11):
Right. If you're the awardee and somebody files a protest against the award to your company, you're going to also want to intervene, and to intervene in a really meaningful way, you're going to want counsel. Typically, there's going to be a protective order in place to protect the confidential business information that's inherent in any kind of protest about evaluation errors. So an order for your side to get access to that information, to look for problems, respond to allegations, all of that, you're going to need to be able to see the information that everybody else is seeing in that process. In order to do that when there's a protective order, you're going to have to have outside counsel.
Lisa Rehurek (33:53):
Perfect. So I just wanted to clarify that because it's not just the company that is going to protest, but the company, if you are the winner, if you're the awardee, you need to be prepared with that as well because a lot of times that does happen. I know on state RFPs, proposals that that happens and people are a little bit caught off guard sometimes. I love, love, love that piece of advice to have your lawyer lined up before any of that ever happens. So, sorry, I just wanted to enter and say that. Continue on, please. I think you were going to go to a next point.
Carissa Siebeneck Anderson (34:27):
My long list of things to do because a government contracts lawyer doesn't just work in litigation or transactions. We advise clients about the full life cycle of what's going on in government contracts in my practice at least, and a lot of government contracts lawyers are like that. We talk about how to prevent litigation, prevent bid protests, and we talk about, "Okay, now you have a bid protest that you want to file. Let's deal with that. Let's talk about regulatory compliance. How do we make sure we're in compliance and then how do we advise you about specific transactions?" We sort of do all of those different tasks that somehow relate to you and your business as a government contractor. So it is near and dear to my heart that we try to prevent as many compliance risks or bid protest risks, litigation risks, et cetera. It's always cheaper to do prevention and invest in prevention than it is and preparation here rather than litigation, full out litigation itself to fight it out in court.
Carissa Siebeneck Anderson (35:28):
So the last item on my list here is to really understand and evaluate your own capabilities and your opponent's capabilities. So this is sort of understanding, again, your proposal, your capabilities, maybe even evaluating yourself based on where you think you should fall out in the solicitation's evaluation criteria based on your proposal. If you have some information about your competitor, you kind of have a general understanding of where they might fall. You might perform the same analysis, sort of putting yourselves in the shoes of the contracting officer, the folks that are on the evaluation board that are making the decision about the contract award. Sort of create a mock-up of what you think your rating should be. This would be really helpful to have walking into your debriefing so that when the government tells you, "Here's what you were evaluated at, and here's what the awardee was evaluated at," you have already sort of thought through what you think it should look like. If there are some surprises there, then that might be grounds for pursuing or at least considering a bid protest.
Lisa Rehurek (36:34):
Wow. There's so much to think about. Back to our comment about, can you do this without counsel? Sure. Should you? Absolutely not. I wholeheartedly second that because it's a lot of information and again, us as business owners or whoever is leading the charge for a particular opportunity, that's not what we're best at obviously. We're or not lawyers. Even if we think we can be, or we think we can do contracts, it's a horrible use of our time. It's best to bring the experts in.
Lisa Rehurek (37:07):
So, Carissa, I greatly appreciate everything that you're talking about here. Any last thoughts that you'd like to share with companies that are listening right now that are like, "Oh, I need to be paying more attention to this." Any last thoughts for them?
Carissa Siebeneck Anderson (37:21):
Yeah. I guess two things. One, if you lose, always ask for your debriefing and then treat every loss and frankly award, as we talked about, as a lessons learned opportunity. Learn what you can about your own strengths and weaknesses and how the government is seeing you, how you compare to your competition and what your competitors' strengths and weaknesses are. This is also a good opportunity to figure out how good are we at writing proposals? How good are we at reflecting our actual strengths and weaknesses versus maybe we had all the goods here? We just didn't write as strong a proposal as we need to. So I really encourage everybody to ... I know it's hard to take those losses when they come, especially if there was a lot of time and energy that went into that proposal, but consider every loss also as an opportunity to learn a lesson, make the next one better.
Carissa Siebeneck Anderson (38:13):
I've seen companies actually bid on contracts that they know they are in the bottom 5%, 5% chance of getting this contract, but they did it for the pure reason of going through the process, making their business development team go through putting together a proposal in a new area, a new industry that might be a little out of their wheelhouse and testing the waters and then getting feedback from the government on how they did.
Carissa Siebeneck Anderson (38:41):
It's somewhat of an investment, but it can also be a strategic use of resources if you do that the first time around so that when the next contract comes up that you are really gunning for, you are ready. You've got one proposal under your belt. You've already done this before, and you've already got some lessons learned. You might be able to make a little bit better of a judgment also about, should I even spend resources on going after this particular procurement if I know I'm still going to be number five on the list behind these other four competitors or should I maybe devote my resources to something else? So I think that's also helpful to just remember every one of these losses can also be a learning opportunity. Just make sure you do request that debriefing and put those lessons learned into your business process with your business development folks and others, so that you use that opportunity that is available to you.
Lisa Rehurek (39:30):
It's so interesting because you're preaching some of our messages, and we do such wildly different things in our business, even though it's all around the same topic. But what's so funny is we always tell people too, "You have to really know your own strengths and weaknesses. What differentiates you? You can't know what differentiates you, if you don't know your competition." So we are always preaching to know that information well because that's the only way you're going to write a proposal that gets you noticed at the level that you deserve to be noticed at. So I hear what you're saying. I love what you're saying.
Lisa Rehurek (40:05):
So this has been fantastic. Now in the show notes, we're going to have your contact information. But today we've been talking all about bid protests, but there's other things that you do. What else would you recommend a small business calling you for with regards to government contracting?
Carissa Siebeneck Anderson (40:24):
Oh gosh, I guess there's a lot of different things. So if you are an 8(a) Business Development Program participant, it can be helpful to talk to an attorney if you're an applicant filing, if you have any eligibility concerns, just getting some advice on what the rules are. That comes up a lot where we're just advising people about what the rules are, whether they're in compliance or whether they need to do something to get into compliance, something like that.
Carissa Siebeneck Anderson (40:49):
Sometimes people have concerns about moving to the next stage in development, maybe having a teaming agreement or getting into a mentor-protege agreement, a joint venture agreement. If you're considering any of those things, I would definitely recommend reaching out to an attorney that has expertise in federal government contracts and specifically small business that understands the rules of what have to go into a joint venture agreement that complies with 8(a) regulations or HUBZone regulations or something like that.
Carissa Siebeneck Anderson (41:18):
A lawyer can't just step into any other lawyer's job. There are a lot of different kinds of lawyers, just as there are lots of different kinds of doctors or anything else. So you really want to make sure you have an attorney that's experienced in federal government contracting and understands specifically the small business requirements that might be applicable to you if you're in a specific small business program.
Carissa Siebeneck Anderson (41:38):
In addition to that, I mean, of course, if you have any kind of size protest or bid protest, if you're in the middle of litigation or something, it can also be very helpful to talk to counsel and get counsel in that situation. Then the other thing that we see people coming to us for a lot of times right now especially, mergers and acquisitions. A lot of companies might be looking to be acquired or some of our entity-owned businesses are often looking for businesses to acquire. So we're often involved in advising companies about how do you acquire a small business? How do you acquire a service disabled veteran-owned small business? Or how do I take this company and can I turn it into an 8(a)? There's all kinds of questions that come up whenever companies are considering expanding their operations when they reach that next level of growth.
Lisa Rehurek (42:26):
Wonderful. Well, I think our listeners are probably going to be very impressed with everything that you've had to say. So hopefully you'll be getting some calls because there's a lot that you can help those of us that are small businesses with. So Carissa, thank you so much for your time and all of your incredibly valuable information that you've shared with our listeners. We really appreciate you being here.
Carissa Siebeneck Anderson (42:47):
Thank you. It was fun.
Lisa Rehurek (42:49):
All right, everybody, if you have enjoyed this episode, make sure you go out and give us a review. We always love your ratings and reviews. Thank you for being here. You have been listening to The RFP Success Show.
Speaker 1 (43:01):
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@rfpsuccess.com. No matter your business size or 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 therfpsuccesscompany.com.