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1Providing CMMI® Process-Based Solutions
Protests A Contractors Perspective
cheryl.nilsson@tybrin.com
850-337-2609
Cheryl L. NilssonVice President, Contracts
TYBRIN Corporation
2Providing CMMI® Process-Based Solutions
Perspectives on Protests
From the GAO
Statistics
Tips The “Hot” Protest Issues From Contractors
Decision to Protest
Opportunities to Compete
Access to Information
Level Playing Field
The Debriefing
“A Fair Shake”
3Providing CMMI® Process-Based Solutions
From the GAO -Protests Statistics
FY2007 FY2006 FY2005 FY2004 FY2003 FY2002
Cases Filed1411
(up 6%)1327
(down 2%)1356
(down 9%)1485
(up 10%)1352
(up 12%)1204
(up 5%)Merit (Sustain + Deny) Decisions
335 249 306 365 290 256
Number of Sustains 91 72 71 75 50 41Sustain Rate 27% 29% 23% 21% 17% 16%
4Providing CMMI® Process-Based Solutions
From the GAO GAO will support the Agency when Decision is:
Reasonable Supported Documented
Facts control the Outcome Lessons Learned
Document Decisions Contemporaneously Agency & Offeror must follow ground rules set forth in
Solicitation Discussions:
• Need to be meaningful, not misleading• Treat offerors fairly, not equally• CO has a lot of Discretion on Coverage
Focus on using discussions to “maximize Governments ability to get best value
Must discuss weakness – can discuss strengths.• Offerors must listen and be responsive.
5Providing CMMI® Process-Based Solutions
What’s “Hot” OCI
Significant deference to CO plan approval if agency does/documents a thorough review.
Test for “Unequal Access/Unfair Competitive Advantage” (ARINC 77 Fed. Cl. 196 (2007)• Insight beyond that expected of a typical Government
Contractor• K had materials related to SOW/Spec • Some other preferred treatment occurred
Cost Realism- Guard Against Unsupported Claims How to Do it Team Boss B-298865.3 (12/28/07) How Not to do it –Magellan Health Services B-298912 (Jan 5,
2007)• Evaluate Technical with Cost-Do the cost proposed cover the
performance evaluated Past Performance
“Say one thing, do something else” Unequal Effort
6Providing CMMI® Process-Based Solutions
From the Contractor Decision to Protest
Relational Risks– The “Whine” Factor
• Integrity is Key
• Corporate Reputation and Strong Customer Relations Critical to Long term Success
Financial & Time Commitment
• “Outside” Counsel required for “Protected” information$300-$800 per hour X 3
• “Experts”
• Recovery if prevail – 10%
Diversion of Resources Talent
Likelihood of “success” –VERY low
• “Success” = Award of Contract (not protest sustained)
Facts must be Compelling
7Providing CMMI® Process-Based Solutions
From the Contractor The Facts Supporting a Protest
Pre-RFP/RFP
• Equitable access to information
• Appearance of open competition
• “Wired”
Discussions
• Openness
• Serious consideration of Proposal
The Debriefing
8Providing CMMI® Process-Based Solutions
The Facts … The Debrief -- FAR 15.606
Choice Orally or in Writing, by electronic means, or any other method acceptable to the contracting officer
CO normally chairs. Individuals conducting the Evaluations shall provide support. At a Minimum Should Include:
• (1) Evaluation of offeror’s significant weaknesses or deficiencies in the offeror's offer.
• (2) Overall evaluated cost and technical rating of the awardee and the debriefed offeror.
• (3) The overall ranking of each offer.
• (4) A summary of the rationale for the award.
• (5) In the case of a proposal that includes a commercial item that is an end item under the contract, the make and model of the item being provided by the awardee.
• (6) Reasonable responses to relevant questions posed by the debriefed offeror as to whether source selection procedures set forth in the solicitation, applicable regulations, and other applicable authorities were followed by the agency.
Shall not include: • a point-by-point comparison of the debriefed offeror's proposal with other proposals;
• information exempt from disclosure under the Freedom of Information Act, such as trade secrets, privileged or confidential manufacturing processes and techniques, and privileged or confidential commercial and financial information.
9Providing CMMI® Process-Based Solutions
The Debrief
Significant CO Discretion - Wide Variation Air Force –(3 yr., $480 M, Engineering Services)
• SSA Offered Bidders a Face-to- Face Debriefing at Contractor’s Facility
• Led by SSET Chair – Fully engaged in Entire ProcessDebriefing Team included all of the Senior Members of Evaluation Team
• Debriefing Slides were the Exact Slides Presented to the SSA for DecisionProvided to Contractor in advance for Review
Contractor Provided Questions in Advance for Debriefing Team Consideration
Debriefed from SS Slides (with active discussion), then answered K’s written questions and supplemental questions from debrief.
• SSD minimal redactions – easy to see the reason for selection
10Providing CMMI® Process-Based Solutions
The Debrief Significant CO Discretion - Wide Variation (Cont)
NASA – 10 year Engineering Services $140M.• Released Comprehensive “Source Selection Statement” that
included:Source Evaluation Board (SEB) Findings on all Bidders in Advance:
– Ratings on all Factors;
– Strengths & Weaknesses,
– Past Performance Rating,
– Proposed and Probable Costs and a narrative cost analysisSource Selection Decision
– Ranked Offerors with extensive narrative on rationale
– Highlighted where he disagreed with the SEB
– Did a further comparison between the top two, identifying major discriminator
– Short Trade-off analysis – even though selected the high technical, low cost proposal emphasizing high rating for past performance
11Providing CMMI® Process-Based Solutions
The Debrief Significant CO Discretion - Wide Variation (Cont)
Air Force (10 year, Engineering Services, $300M)
• SSDD and SSET Briefing Slides provided in Advance
Written Questions requested
• SSDD –
Apparent “tie” – selection decision support very general
• The Debriefing Guarded
One person did all talking from a script
No SS evaluation team members present
The CO role minimized
Answers to questions – Vague
Permitted a teleconference --Placed phone so those listening could not hear.
12Providing CMMI® Process-Based Solutions
Summary
No Such Thing as “Protest Proof” Position for Success
Fair Source Selection
Experienced SS Eval Team with a Stake in the Results
Contemporaneous Documentation
Extra Caution/Documentation on “Hot” Spots
SSA Decision Based on Verifiable Differences
Maximum Exchange on Debriefing
13Providing CMMI® Process-Based Solutions
?s
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