FED GOV CON - Advanced Strategies in Bid Protest Litigation

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Please join Jennifer Schaus & Associates every Wednesday in 2019 for a complimentary Wednesday series. For full audio of this presentation please visit (https://youtu.be/pnC5uj67yss). For more information about our federal contracting services please visit http://www.Jenniferschaus.com or contact us at 202-365-0598. Win more federal government contracts!

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FED GOV CON Webinar Wednesdays 2019 Series JSchaus & Assoc. Washington DC + 1 – 2 0 2 – 3 6 5 – 0 5 9 8:

FED GOV CON Webinar Wednesdays 2019 Series JSchaus & Assoc. Washington DC + 1 – 2 0 2 – 3 6 5 – 0 5 9 8

About Our Webinars: - Every Wednesday; - Complimentary; - Recorded; - YouTube & our Website; - No Questions :

About Our Webinars: - Every Wednesday; - Complimentary; - Recorded; - YouTube & our Website; - No Questions

About Us: Professional Services for Federal Contractors - GSA Sched; - SBA 8(a); - Proposal Writing; - Pricing; - Contract Administration; - Business Development :

About Us: Professional Services for Federal Contractors - GSA Sched; - SBA 8(a); - Proposal Writing; - Pricing; - Contract Administration; - Business Development

Upcoming Events: TUESDAY - Aug 6 IN-PERSON CLASS: Intro To GSA Schedules :

Upcoming Events: TUESDAY - Aug 6 IN-PERSON CLASS:  Intro To GSA Schedules

Advertise With Us! We offer newsletter & webinar advertising. CONTACT: Mallory.Flowers@ jenniferschaus.com for more information. :

Advertise With Us! We offer newsletter & webinar advertising. CONTACT: Mallory.Flowers @ jenniferschaus.com for more information.

About Our Speaker: Maria Panichelli Education: Temple Law ’07 Lehigh University ‘03 Company Name: Obermayer Rebmann Maxwell & Hippel # of Years Federal Gov Con Experience: 8 Years GovCon 12 Years Practicing Law:

About Our Speaker: Maria Panichelli Education: Temple Law ’ 07 Lehigh University ‘03 Company Name: Obermayer Rebmann Maxwell & Hippel # of Years Federal Gov Con Experience: 8 Years GovCon 12 Years Practicing Law

Advanced Strategies in Bid Protest Litigation:

Advanced Strategies in Bid Protest Litigation

What Background Information Do You Want To Know? - What Type of Contract? - Who Are You Dealing With? - What Type of Procurement? - What Is the Scope of Work/Services Contemplated?:

What Background Information Do You Want To Know? - What Type of Contract? - Who Are You Dealing With? - What Type of Procurement? - What Is the Scope of Work/Services Contemplated? 2019 – Fed Gov Con Webinar Series - Washington DC JSchaus & Associates

WHY Protest? (A Refresher) - Bases for Pre-Award Protests Based on Errors in Solicitation - Bases for Pre-Award Protests Based on Exclusion from the Competitive Range and Post-Award Bid Protests:

WHY Protest? (A Refresher) - Bases for Pre-Award Protests Based on Errors in Solicitation - Bases for Pre-Award Protests Based on Exclusion from the Competitive Range and Post-Award Bid Protests 2019 – Fed Gov Con Webinar Series - Washington DC JSchaus & Associates

CAN You Protest? - An “interested party” is “an actual or prospective bidder or offeror whose direct economic interest would be affected by award of contract or by failure to award contract”:

CAN You Protest? - An “interested party” is “an actual or prospective bidder or offeror whose direct economic interest would be affected by award of contract or by failure to award contract” 2019 – Fed Gov Con Webinar Series - Washington DC JSchaus & Associates

But . . . Should You Protest? How Do You Decide When To Pursue A Protest, And When To Let It Go? Not all Protests are Created Equal… - Costs v. Likelihood of Success - Subjective v. Objective Arguments - Actual Prejudice? - Information Gathering Tool? – No More! - Is a “Win” Really a “Win? - Practical Concerns :

But . . . Should You Protest? How Do You Decide When To Pursue A Protest, And When To Let It Go? Not all Protests are Created Equal… - Costs v. Likelihood of Success - Subjective v. Objective Arguments - Actual Prejudice? - Information Gathering Tool? – No More! - Is a “Win” Really a “Win? - Practical Concerns 2019 – Fed Gov Con Webinar Series - Washington DC JSchaus & Associates

So How Do You Find Out If You Have a Winning Protest? DEBRIEFINGS! (But is it Required? And Why Do You Need To Care?):

So How Do You Find Out If You Have a Winning Protest? DEBRIEFINGS! (But is it Required? And Why Do You Need To Care?) 2019 – Fed Gov Con Webinar Series - Washington DC JSchaus & Associates

Pre-Award Debriefing - 15.505(e) At a minimum, the pre-award debriefings must include: - The agency’s evaluation of significant elements in the offeror’s proposal; - A summary of the rationale for why the offeror was not selected for an award; - Reasonable responses to relevant questions about whether source selection procedures contained in the solicitation, applicable regulations, and other applicable authorities were followed in the process of eliminating the offeror from the competition.:

Pre-Award Debriefing - 15.505(e) At a minimum, the pre-award debriefings must include: - The agency’s evaluation of significant elements in the offeror’s proposal; - A summary of the rationale for why the offeror was not selected for an award; - Reasonable responses to relevant questions about whether source selection procedures contained in the solicitation, applicable regulations, and other applicable authorities were followed in the process of eliminating the offeror from the competition. 2019 – Fed Gov Con Webinar Series - Washington DC JSchaus & Associates

Pre-Award Debriefing - 15.505(f) Pre-award debriefings shall not disclose: - The number of offerors; - The identity of other offerors; - The content of other offerors proposals; - The ranking of other offerors; - The evaluation of other offerors; or - Any of the information prohibited in 15.506(e) (Trade Secrets, Privileged or confidential/proprietary information, past performance references, etc.):

Pre-Award Debriefing - 15.505(f) Pre-award debriefings shall not disclose: - The number of offerors ; - The identity of other offerors ; - The content of other offerors proposals; - The ranking of other offerors ; - The evaluation of other offerors ; or - Any of the information prohibited in 15.506(e) (Trade Secrets, Privileged or confidential/proprietary information, past performance references, etc.) 2019 – Fed Gov Con Webinar Series - Washington DC JSchaus & Associates

Post-Award Debriefing - 15.506(d) At a minimum, the post-award debriefings must include: - The Government’s evaluation of the significant weaknesses or deficiencies in the offeror’s proposal - The overall evaluated cost or price (including unit prices) and technical rating of the successful offeror and the debriefed offeror, and past performance information on the debriefed offeror - The overall ranking of all offerors, when any ranking was developed by the Agency during the source selection - A summary of the rationale for award :

Post-Award Debriefing - 15.506(d) At a minimum, the post-award debriefings must include: - The Government’s evaluation of the significant weaknesses or deficiencies in the offeror’s proposal - The overall evaluated cost or price (including unit prices) and technical rating of the successful offeror and the debriefed offeror , and past performance information on the debriefed offeror - The overall ranking of all offerors , when any ranking was developed by the Agency during the source selection - A summary of the rationale for award 2019 – Fed Gov Con Webinar Series - Washington DC JSchaus & Associates

Post-Award Debriefing - 15.506(d) At a minimum, the post-award debriefings must include (cont.): - For acquisitions of commercial items, the make and model of the item to be delivered by the successful offeror - Reasonable responses to relevant questions about whether source selection procedures contained in the solicitation were followed:

Post-Award Debriefing - 15.506(d) At a minimum, the post-award debriefings must include (cont.): - For acquisitions of commercial items, the make and model of the item to be delivered by the successful offeror - Reasonable responses to relevant questions about whether source selection procedures contained in the solicitation were followed 2019 – Fed Gov Con Webinar Series - Washington DC JSchaus & Associates

Post-Award Debriefing - 15.506(e) Post-award debriefings shall not include: - Point-by-point comparisons of the debriefed offeror’s proposal with those of other offerors. - Any information prohibited from disclosure by 24.202 or exempt from release under the Freedom of Information Act (5 U.S.C. 552) :

Post-Award Debriefing - 15.506(e) Post-award debriefings shall not include: - Point-by-point comparisons of the debriefed offeror’s proposal with those of other offerors . - Any information prohibited from disclosure by 24.202 or exempt from release under the Freedom of Information Act (5 U.S.C. 552) 2019 – Fed Gov Con Webinar Series - Washington DC JSchaus & Associates

Successful Debriefing - Ensure receipt of debrief materials before the debrief session - Formulate questions in advance, and prepare - Make a strategic decision about attendees - Ps and Qs - Format of Debriefing?:

Successful Debriefing - Ensure receipt of debrief materials before the debrief session - Formulate questions in advance, and prepare - Make a strategic decision about attendees - Ps and Qs - Format of Debriefing? 2019 – Fed Gov Con Webinar Series - Washington DC JSchaus & Associates

Successful Debriefing - Protests/deadlines are a complicated area of law - Further complicated by growing use of inter-agency relationships - Government trend towards written debriefings; how does that affect the process? - DoD Enhanced Debriefings (March ’18), when do they apply? :

Successful Debriefing - Protests/deadlines are a complicated area of law - Further complicated by growing use of inter-agency relationships - Government trend towards written debriefings; how does that affect the process? - DoD Enhanced Debriefings (March ’18), when do they apply? 2019 – Fed Gov Con Webinar Series - Washington DC JSchaus & Associates

Remember Your “When” Rules This is a complicated area of law, with tight & unforgiving deadlines - Where in the procurement timeline are you? - What type of procurement was this? Was a debriefing required? What type of debriefing did you get? Is the debriefing concluded? - Do the DoD Enhanced Debriefing Rules apply? Where are you in that process? - Do you want a Stay?:

Remember Your “When” Rules This is a complicated area of law, with tight & unforgiving deadlines - Where in the procurement timeline are you? - What type of procurement was this? Was a debriefing required? What type of debriefing did you get? Is the debriefing concluded? - Do the DoD Enhanced Debriefing Rules apply? Where are you in that process? - Do you want a Stay? 2019 – Fed Gov Con Webinar Series - Washington DC JSchaus & Associates

Defending a Protest - Protest is technically against the agency… - How can you defend the agency’s actions? You often can’t… Even though you were the ultimate beneficiary, you have no control over the agency source selection process - This makes substantive defensive arguments hard, at times - But – even in those circumstances - you can usually find procedural arguments; through strategic planning, you can sometimes leverage those for a win or something close to a win:

Defending a Protest - Protest is technically against the agency… - How can you defend the agency’s actions? You often can’t… Even though you were the ultimate beneficiary, you have no control over the agency source selection process - This makes substantive defensive arguments hard, at times - But – even in those circumstances - you can usually find procedural arguments; through strategic planning, you can sometimes leverage those for a win or something close to a win 2019 – Fed Gov Con Webinar Series - Washington DC JSchaus & Associates

Defending a Protest - Protest is technically against the agency…and will be defended by AGENCY counsel - You need to Protect YOUR rights. Intervene!!!! You can modulate efforts/legal costs from there, but if you intervene you have your foot in the door, are able to monitor the case, and can cover your bases - Provide support to the agency; team effort:

Defending a Protest - Protest is technically against the agency…and will be defended by AGENCY counsel - You need to Protect YOUR rights. Intervene!!!! You can modulate efforts/legal costs from there, but if you intervene you have your foot in the door, are able to monitor the case, and can cover your bases - Provide support to the agency; team effort 2019 – Fed Gov Con Webinar Series - Washington DC JSchaus & Associates

Defending a Protest - Standing/Jurisdiction - Timeliness - Speculative - Defeat the Stay, Defeat the Purpose?:

Defending a Protest - Standing/Jurisdiction - Timeliness - Speculative - Defeat the Stay, Defeat the Purpose? 2019 – Fed Gov Con Webinar Series - Washington DC JSchaus & Associates

THANK YOU! JSchaus & Assoc. Washington DC hello@JenniferSchaus.com www.JenniferSchaus.com + 1 – 2 0 2 – 3 6 5 – 0 5 9 8:

THANK YOU! JSchaus & Assoc. Washington DC hello@JenniferSchaus.com www.JenniferSchaus.com + 1 – 2 0 2 – 3 6 5 – 0 5 9 8 Speaker: Maria L. Panichelli, Esq. Email: Maria.Panichelli@Obermayer.com Phone: 215.665.3017

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