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Implement a standard practice where the unsuccessful protestor pays the reasonable proximate costs incurred. No settlement fee in advance. Hand the filer a good faith estimate of the potential cost to them (and likelihood) of various outcomes,  then they decide their course of action....

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22 minutes ago, bob7947 said:

How do you solve this?

I think I'm misunderstanding your steps 7 & 8.  Why did the COFC grant the preliminary injunction?  Do you mean the protestor abandoned its protest at the GAO and is now pursuing the protest at COFC, or do you mean the protestor is seeking COFC to review the agency's override decision?  COFC employs standards in granting the preliminary injunction or in reviewing the CICA override.  Are you saying those standards favor the protestor disproportionately?  Or do you believe, as a practical matter, whatever the rules may say, judges at COFC will find a way to enjoin?

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First look at 4 CFR 21.6: Withholding Award, Suspending Contract Performance, Override of Stay, Injunction

B first got a CICA stay to stop work; which the agency defeated with its urgent and compelling and public interest talk to continue work; then B wanted to continue stoppage of work and went to the COFC which could stop work. 

The COFC has 4 thresholds it reviews to issue an injunction.  It doesn't take an injunction lightly.  In my scenario, It found something wrong with the proposal evaluation and determined an injunction was needed to stop performance.  I'm assuming it did find that something.

A could appeal the COFC opinion to the Court of Appeals for the Federal Circuit which could overrule the COFC opinion and knock down the injunction.  

At first, I was trying to find a way of defeating Contracting Blackmail.  I couldn't eliminate the possibility in it entirety because of the COFC.  Then you have the CAFC that can reverse the COFC.  This is absurd.  In the real world time is money.  The longer B has avenues to stop contract performance, the more B has the possiblity of someone paying him off to go away and withdrawal court action.

I've been a proponent of removing the courts from hearing bid protests.  This seems to support their removal--if my scenario is possible.  With GAO only in the bid protest arena, a CICA stay is granted until the GAO decision.  If GAO denies the protest it's over.  The agency can still ignore the stay and continue performance.  There just won't be anyone hearing protests over the stay.

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34 minutes ago, Jacques said:

I think I'm misunderstanding your steps 7 & 8.  Why did the COFC grant the preliminary injunction?  Do you mean the protestor abandoned its protest at the GAO and is now pursuing the protest at COFC, or do you mean the protestor is seeking COFC to review the agency's override decision?  COFC employs standards in granting the preliminary injunction or in reviewing the CICA override.  Are you saying those standards favor the protestor disproportionately?  Or do you believe, as a practical matter, whatever the rules may say, judges at COFC will find a way to enjoin?

the protestor is seeking COFC to review the agency's override decision

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57 minutes ago, bob7947 said:

How do you solve this?

I don't know that this would be a complete solution, but congress could take away the COFC's ability to issue an injunction when an agency issues an override decision.  The injunction is based on the merits of the award, not the propriety of the override decision.   Instead, either the GAO or COFC could review the override decision to determine if the government had a rational basis for issuing the decision.  If it did, the override remains in place.  If it did not, the override would be reversed. 

As an aside, from reading COFC decisions where a PI was requested, such an order is issued in a minority of cases.  Thus, it does not appear to me that injunctions are a big problem as they are more likely to be denied than granted.

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Jacques:

Taking a different approach, you can ask why are there so many dismissals in disputes over contracting officers' final decisions?  See the CBCA and then you have to click the decisions for ASBCA.  You figure that out.

The Courts can overrule the Boards and then overrule each other there too.

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I'm behind in the conversation, but back to your discussion on COFC reviewing an agency decision to override a CICA stay, I think Reilly's Wholesale Produce v. U.S., 73 Fed. Cl. 705, 711 (2006) lists the factors.  (I think this remains the law but it has been awhile since I've had to deal with it.)  Paraphrasing, the factors are:

Quote

(i) whether significant adverse consequences will necessarily occur if the stay is not overridden

(ii) conversely, whether reasonable alternatives to the override exist that would adequately address the circumstances presented

(iii) how the potential cost of proceeding with the override, including the costs associated with the potential that the GAO might sustain the protest, compare to the benefits associated with the approach being considered for addressing the agency’s needs

(iv) the impact of the override on competition and the integrity of the procurement system, as reflected in the Competition in Contracting Act

Overrides are infrequent.  While I think overrides were used more, and used more effectively following this statistic, especially for GWOT-related efforts, COFC invalidated four of six agency overrides in the six years from 1999 to 2004, according to 82 Federal Contracts Reporter 578.  (I think I have those years right.) 

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I can't speak intelligently on whether Congress should take away COFC's jurisdiction to hear bid protests.  I do worry the system may be asking too much of COFC judges to be able to rule wisely on the wide range of issues that appear before that court.

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I’m going to express a different viewpoint here.  Fedmail happened in a completely different time and set of circumstances.  The GSBCA got protest authority for Brooks Act procurements.  In many cases they flexed their muscles and even went wild with a few decisions that ran counter to prior decisions.  Protestors loved them because chances of prevailing were many times greater than with GAO.  Protesting was the only way companies could get information on why they lost as well

Fast forward to today with emphasis on things like category management, cooperative and collaborative relationships with vendors, and long term relationships.  A large share of companies feel protests hurt their future business and run counter to those trends.  Many of the best contracting offices and COs are more open and willing to discuss their decisions.  They aren’t hiding information.  If they realize a mistake was made, they are willing to correct this actions.  So issues gets resolved informally and promptly.  

I know this isn’t across the board in government though.  There are agencies that stick by the old line, conservative lawyers rule, and lots of COs lack experience.   One apparent characteristic in many protest decisions is agencies didn’t follow basic procedures.  Those agencies just don’t know what they’re doing.  I think every agency protest response should be endorsed by the Procurement Executive and top legal counsel personally supporting the agency position.  That should send many back to COs to resolve on their own. 
 

If this happens, there’s no need for the COFC

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  • 1 month later...
On 2/11/2020 at 7:44 PM, formerfed said:

I know this isn’t across the board in government though.  There are agencies that stick by the old line, conservative lawyers rule, and lots of COs lack experience.   One apparent characteristic in many protest decisions is agencies didn’t follow basic procedures.  Those agencies just don’t know what they’re doing.  I think every agency protest response should be endorsed by the Procurement Executive and top legal counsel personally supporting the agency position.  That should send many back to COs to resolve on their own. 
 

If this happens, there’s no need for the COFC

Do you think that this might lead some agencies to strategically make decisions that would lead to lower risks of protests rather than to follow those basic procedures or do what's in the Government's best interest? For example, in an environment where multiple awards are anticipated but there's various compliance issues and a CO has removed so many offerors that they wouldn't meet their anticipated awards. The lawyers / Procurement Exec might say " just give them all awards, no one could protest that!" 

For the sake of the example above: MA-IDIQ with 20 awards anticipated, 30 proposals received, only 10 pass a compliance review. 

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18 minutes ago, Freyr said:

Do you think that this might lead some agencies to strategically make decisions that would lead to lower risks of protests rather than to follow those basic procedures or do what's in the Government's best interest? For example, in an environment where multiple awards are anticipated but there's various compliance issues and a CO has removed so many offerors that they wouldn't meet their anticipated awards. The lawyers / Procurement Exec might say " just give them all awards, no one could protest that!" 

For the sake of the example above: MA-IDIQ with 20 awards anticipated, 30 proposals received, only 10 pass a compliance review. 

If only 10 pass a compliance review out of 30 proposals, something is wrong.  Most likely it’s the solicitation.  I would issue an amendment and seek revised proposals.  
 

Going back to your question, most PEs are experienced and understand contracting objectives.  Most wouldn’t give in to just avoid protests.  I said “most” and not “all” though.  Several PEs expressed how it’s wrong to make so many awards on multiple award ID/IQ contracts.  In fact one agency’s stated strategy in a solicitation is ensuring adequate competition, meaning approximately three sources capable of responding to RFQs for any given subject matter, and the total number of awards is based on proposal evaluations and the ability to achieve that goal.  This replaces a previous procurement with many awardees.  I think they ended up with 7.
 

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1 hour ago, formerfed said:

If only 10 pass a compliance review out of 30 proposals, something is wrong.  Most likely it’s the solicitation.  I would issue an amendment and seek revised proposals.  
 

Going back to your question, most PEs are experienced and understand contracting objectives.  Most wouldn’t give in to just avoid protests.  I said “most” and not “all” though.  Several PEs expressed how it’s wrong to make so many awards on multiple award ID/IQ contracts.  In fact one agency’s stated strategy in a solicitation is ensuring adequate competition, meaning approximately three sources capable of responding to RFQs for any given subject matter, and the total number of awards is based on proposal evaluations and the ability to achieve that goal.  This replaces a previous procurement with many awardees.  I think they ended up with 7.
 

A colleague of mine actually saw this situation where a lot of vendors failed their compliance checks, protested, and the PEs suggested just giving awards to everyone. I think ultimately they ended up in discussions. I definitely agree that some MA-IDIQs are getting too big, needlessly so, but it seems like this might come up more since it's administratively probably easier to just give everyone an award rather than seek revised proposals or go into discussions (looking at those huge IDIQs like Seaport-e and OASIS (adding like 1000 new vendors?!)). Not to take things too off track, but I'm betting getting the PEs and highest levels of legal counsel involved will do more than just advise those inexperienced COs but would end up driving the bus for them. 

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Since Freyr has recently posted under the Beginners Forum, my advice would also include setting up the solicitation to allow for discussions and revised proposals in the event that compliance reviews are resulting in so many non-“compliant” proposals.

i don’t know what you mean by “compliance reviews”.  Is it a pro-forma review to see if everything was submitted as required or Is it an evaluation of the quality of proposals using factors and their corresponding evaluation criteria?

It would certainly appear that something is wrong with the proposal requirements if 20 out of 30 respondents can’t meet the solicitation requirements, either way...

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