 Episode 94, I guess I would say this, something I haven't really talked about is what you mentioned in the beginning, which is intervening, right, which is you've won the protest and someone's protesting your win was the intervener. You have the ability at GAO and the Court of Federal Claims to intervene in that protest because you're the awardee. Right. You have an interest in the outcome. Welcome to the GovCon Giants Podcast, federal contracting for people on the outside looking in. If you are here to learn how to win a piece of the pie without getting your face smashed in, then you've tuned in to the right place. Now, the giant that not only walks the walk, but talks the talk, your host, Eric Coffey. My name is Eric Coffey. I'm the founder and CEO of GovCon Giants 501C3, a nonprofit organization and host of the GovCon Giants Podcast, a show where we interview experts and professionals from around the world operating or serving the federal contracting space. Most of our guests are successful small business government contractors or industry leaders who support federal contractors. If this is your first time, make sure to subscribe wherever you are tuning in. Today's episode, we interview Joshua Duvall. Joshua Duvall is the founder and managing partner at Metros Edwards LLC, a Washington DC based government contracts and business law firm serving government contractors nationwide. Josh regularly counsels and represents small and mid-sized businesses in a variety of federal procurement matters, including bid protests, SBA regulatory issues and protests, contract disputes, teaming and JV agreements, cybersecurity and compliance. Josh is a certified information system security professional, blogs at GovConJudica.com and enjoys all things coffee and golf. In this interview, we discuss everything debriefings, pre-award and post-award debriefings, the value and importance of a debriefing and how to use debriefings as a business strategy and more. So what is a debriefing? Oxford Language says a meeting to question someone, typically a soldier or spy, about a completed mission or undertaking. But as you can imagine in the world of federal contracting, we are not dealing with spies and soldiers, but contractors and the people who write and approve contracts, contracting officers. As per the FAR post-award debriefings of offers, it says an offer upon its written request received by the agency within three days after the date on which the offer has received notification of the contract and award shall be debriefed and furnished the basis for the selection decision and contract award. Why is that important? We'll discuss all of that and more in today's podcast. Listen in close on this episode of GovConJudica's podcast with Attorney Joshua Duvall. Josh Duvall here from Matross Edwards. Josh, welcome. Happy to have you today on the show. So Josh, where, Matross Edwards, that's a, what kind of company is that? It's a government contracts and cybersecurity law firm. Okay, okay. And where are you located? Washington, D.C. Okay, all right. Nice, nice. So your particular law firm, what type of law do you practice? I know it's a government contract. Was there anything specific? I think overarching, we have the litigation. So that's bid protest, size protest, claims and disputes, and then there's transactions like joint ventures and team agreements, and then there's the compliance side for like FAR and DFARS, things of that nature. Okay, okay. All right, great. And before we get started, how, if someone wanted to reach out to you, how would they reach you? You can connect with me on LinkedIn at Joshua Duvall or my email, MatrossEdwards.com is the website. Can you spell it for us? So we can get it right? Yep, sure. It's M-A-T-R-O-S-S-E-D-W-A-R-D-S dot com. Okay. All right. And they name, spell your name? J-O-S-H-U-A Duvall D-U-V-A-L-L. All right. Perfect. Okay, great. No, I just want to get some of the formality out of the way. I appreciate that. And we will have all of that information anywhere this information is shared. We'll have it linked into the post. So, but just for those people who may have to cut out early on us today, we just want to have that information in front of them. So now you said the briefings and bid protest. Yep. All right. Let's, where do you want to start? I think we can start with the briefings. Okay. Okay. I think in government contracts, it's something that I think a lot of small and mid-sized companies would benefit from having like a process in place. Yep. And what I tell folks, there's really two watch words or two themes for the briefings. And that's really information gathering and relationship building. Okay. Okay. I love relationship building. That's something that we teach at GovCon EDU and our programs. And the first thing we always are telling small businesses is you've got to get out from behind the computer, get out from behind the desk. Mm-hmm. And go out and meet people. So I love relationship building. But I've never heard of using a debriefing as a way of building relationships. So I'd love for you to expand upon those ideas somewhat. Well, first of all, you know, if you think of the commercial sense, you know, you're not really having an opportunity to sort of develop a relationship after you've lost the procurement with a private company. They're not going to invite you in and tell you why you lost, right? No, of course not. But in government contracts and particularly for procurements that are conducted under FAR Part 15, assuming that the unsuccessful offer or the winner timely requested it and the government provides it, you really have an opportunity not only to learn what went wrong or why you didn't win the award, but at the same time, you're able to use that opportunity to leverage your expertise and kind of build a relationship with the agency because maybe the folks that didn't select you that time might be thinking that there's other opportunities in the future, or if they think that you're difficult to deal with, they're going to deal with you in the future to begin with, right? So it's an opportunity to really get to know the agency, find out why you lost, you know, take those lessons learned back to your LT, your leadership team, kind of figure out how to craft a better narrative or a better proposal that that's going to win. Okay. And so that's sort of the relationship building aspect of you're taking that information, but you're still putting yourself forward to a focus on the inside of the building, right? Let me ask you because again, I'm when I think of the briefing and relationships for me and again, I will admit that as a small business, we do come in with some preconceived notions that may not be totally true. So, you know, that's why we're interviewing people like yourself and talking to you to help kind of set the record straight. Sometimes when we think about debriefing, we think about a negative connotation like we're bugging them or bothering the people in government and contracting. I think a lot of folks who are newer to the government contracting space are sometimes unfamiliar with a lot of the processes that are in place under the FAR, for example, that are there not just to sort of prescribe the rules for how government procurement is sort of moves forward on a football field, for example, right? The goal line is to win a contract, but it's a unique aspect of the procurement process is to be able to find out why exactly you didn't win. Now, as I mentioned earlier, they're available under FAR Part 15 and for task and delivery orders under FAR Subpart 16.5, but you won't get a debriefing if it's like a supply schedule buy under like 8.4 or a FAR Part 12 buy or a 13 buy, right? You'll get like a brief explanation, although colloquially folks will request a debrief, right? But the debriefing is really under that FAR Part 15 microscope, so to speak. And if you're dealing with that, then the contracting officer is really expecting it. In fact, if you've received a notice of unsuccessful, chances are it'll say, you know, if you'd like to request a debriefing, please do so by whatever the third day is because you have three days, right? And so they're anticipating it from their end because it's part of the FAR, right? And so for a contractor to not avail themselves of that opportunity, they're missing that opportunity not just to learn why they lost and what they could do to sort of better position themselves, but it's an opportunity to put yourself in front of agency personnel, right? And so that is, again, that's the other side of the coin, which is, you know, relationship building and information gathering, really. Now, when you say put yourself in front of agency personnel, the debriefings that I've had, they just send back an email or document with them. That's part of the process. I mean, you know, you can't anticipate that every single time that you'll be in that aspect, but if you don't ask, you won't get, right? And so the FAR provides latitude, right? So sometimes a debriefing, it'll be like a PowerPoint presentation. Right. Sometimes it'll be a 10-page or a three-page PDF that explains why you lost. Sometimes, you know, there may have been debriefings conducted via Zoom with the pandemic and everything, but sometimes it's coming to the office or it's just a phone call, right? They have the flexibility to conduct that a briefing in any way that they see fit. I will say that in many instances, you are getting like a written documentation as part of it, but sometimes there is like a face-to-face or on a phone call that you can sort of leverage. But if you don't request that a briefing to begin with, then you won't even have that opportunity, right? So, and even if there isn't like a verbal exchange, you know, you're still showcasing and building a relationship on some level when you're going through that process of asking questions, because if you're under a Department of Defense procurement and you have the enhanced debriefings, right? So then you're in a position where you can ask even more questions, right? To sort of unearth why you lost, right? So typically when we see that, you know, I've talked to folks who are not on the lawyer side, but on the contractor side, and they've been able to, you know, leverage those type of relationships to kind of figure out what's going on, because you can always ask, hey, is there anything coming down the pike that we should know about? You know, we didn't win here, you know, can you give us an idea of, you know, where we went wrong, what you liked, what you didn't like, how can we strengthen our proposal and, you know, use that to sort of, you know, pivot. And if there is an opportunity, maybe, you know, you use that to ask the question and they might say, yeah, we've actually got an RFI or something coming down the pike that you might want to pursue. And if you hadn't been thinking about that or you didn't even ask about or request the debriefing to begin with, then that wouldn't even be on your radar to begin with either, right? So it's sort of part of the process of for folks who are in the small to mid-sized contractor going after far-part 15 procurements, if the debriefing is offered, take it. No. What if it's not offered? So for procurements conducted under far-part 15 or if it's a task of delivery order, the FAR provides for the debriefing, right? And so you have three days to request it. Now, I guess there might be an instance where the government doesn't... Now, when you say far-part 15, what does that mean? Competitive negotiation, right? So you've got all types of procurement. You have, like, simplified acquisition. You have the buys that are off of the federal supply schedule. Right. And then for procurements that are conducted under far-part 15, that's what many of the procurement folks in the DC area are sort of probably familiar with, which is this idea of, hey, there's an RFP. 10 companies are going to bid. It's conducted under far-part 15. Right. There may or may not be discussions. You know, here's the evaluation methodology. Here's section L. Here's section M. You know, here's how the procurement's going to go. And then you're, you know, in many instances, the government's looking to make a trade-off and do a best-value procurement. And that's what we're talking about when we're talking about far-part 15 procurements, right? Okay. This isn't just, you know, the government purchasing 50 gallons of paint or something like that. Right, right, right, right. Usually those will be conducted under a different procedure. Right, right, right. How would I know, as a small business, what falls on it? Like, if my project is under far-part 15, how would I know that? Is there a way to look? Can I look at my contract? Yeah, I would start with solicitation. Sometimes the cover page will have, like, at the very top, it'll say, like, procurement, and I'll have a checkmark next to it. Okay. Or it won't. And if you look through the procurement or the solicitation, rather, to see if it says it's being conducted under far-part 15, if it's a simplified acquisition, you'll read that and then you'll know. But for a lot of those other procurements that are under far-part 15, there's an opportunity to receive a brief explanation, which is a little bit, it's not as robust as what you would get under the FAR, because the FAR provides the minimum requirements for, like, a pre-award debris and a post-award. So, for example, under a post-award debriefing, the government's, at a minimum, supposed to tell you the significant weaknesses or deficiencies in your proposal. The overall evaluated price and technical rating of the awardee and your offer, and then the past performance information of yourself. If they develop the ranking, they'll provide that as well. The summary of the rationale for the award, which is helpful, and then for commercial items, they'll tell you the make and model of that. And then any reasonable responses to, like, relevant questions, right? So, they have this framework for what's supposed to be provided. Now, unfortunately, these minimum requirements are sometimes treated as, like, a maximum, right? And that's sometimes all they'll give to you, right? Which is, I think, what, in many instances, produces folks to want to go protest, because sometimes they just want to know why we lost, right? And if you're only getting a bare-bones debriefing, sometimes they take that as, okay, maybe there was something wrong, even if there wasn't, right? And so, I think that's why you see sort of the success with the DOD enhanced debriefings, which is this opportunity to ask questions when the debriefing closes, is to sort of bring in more information so the contractor can make a better determination as to, like, what really happened, why they lost, you know, what the government was truly looking for and things of that nature. And, of course, like, if they, you know, make a determination that it's right for protesting, that's sort of secondary, right? And that's, like, part of the debriefing process, but, you know, in reality, what you're really doing is just using it to gather information, right? You're not, I mean, I suppose there are some folks that are, like, prepared to, like, protest right off the bat because it's such a significant procurement and it's got strategic value for the company and they spent, you know, a lot of BMP dollars up front to put themselves in a position, and when they lose, they're like, well, why did we lose when we prepared so thoroughly? But you don't want to be in that reactionary position where, like, you know, if you're trying to protest against multiple weaknesses, right? Because you have, you'll run into some issues with that. So, you know, going back to the beginning, you know, it really is that opportunity to gather the information and to sort of build those relationships or even establish the relationships. I mean, you're very familiar with the government contracting landscape. We talk about building relationships and, like, getting in early, right? Not going after the procurements that you see on Bated at Sam. It's the RFIs. I tell people all the time. Exactly, right? Listen, I tell you guys all the time about this stuff. Don't act like you didn't hear it from me, all right? Yes. All right, go ahead. It's a big part of the procurement... I mean, you know, when you're just stepping into the procurement landscape for federal buying, for example. Yeah. Unless you had experience working on, like, the inside of the building, you might say, well, how am I supposed to get there, right? There's tons of mechanisms to sort of put yourself in a position to have those. There's industry days. There's folks that are leaving government that you may know. There's a lot of ways to build those relationships and to sort of find out what the government's buying or, you know, where their pain points are, what they're looking for in terms of, like, IT modernization or some other new project that they're going after. But again, there's this one little, you know, nugget of information that you can get out of a debriefing if it's conducted under FAR Part 15. And obviously, this is after the fact and if you're the unsuccessful offeror or you're perhaps, you know, disappointed that you lost. But it's nonetheless an opportunity to continue that process. And, you know, it's... And the reason I say that is because when folks are approaching the debriefing with this mindset of relationship-gathered, relationship-building and information-gathering, it changes their attitude going into it because it's not supposed to be an adversarial. Right, right. I mean, again, for me, when I hear that, that changes the way that I look at this thing now. And again, I never looked at it as adversarial, but I did look at it as it could be a ding against me, right, for inquiring. And I know it might seem silly if you... But again, I think a lot of us new people, right? It seems like, hey, this person's supposed to be my friend and we're supposed to be trying to... We're supposed to be in a relationship here and then I go out and request a debriefing and create more burden on them. I don't think so. I mean, they're expecting it. But the folks who are like contracting officers for any agency are perhaps underpaid and overworked and they have a really important job because the government is spending north of $500 billion a year and these are the folks that have the warrant to execute these contracts, right? And so they understand that this is part of the process and I haven't met a contracting officer yet that has stated to me that they were offended by someone requesting a debrief that's required under the FAR. So that's sort of the issue. I think some folks think of the debriefing as a means of finding out why you lost and we should have done better and these weaknesses should have been strengths and things of that nature and that's where you can get into trouble because that's really not the focal point of the debrief, which when you think about it from the relationship building and information gathering aspect, and it's just okay, what do we do wrong? How do we correct it? What did you like about our proposal? What did you like about how did you conduct the price analysis, all these other items? So you're not really going in there with the mindset of I shouldn't have had these weaknesses. Tell me why you gave me these weaknesses, right? That's going to put the contracting officer potentially as a human being, like wait a second, right? So it's a delicate process but it's a process nonetheless and it's something that they're expecting and so going through that process and being able to utilize it to your advantage could pay dividends in the future because there may be things, if you don't ask, you don't get or if you keep making the same mistakes you're doomed to repeat them in the future, right? So learning proposal writing is an art there's a reason why people get paid a lot of money to do that as a profession but when you're a small business you probably don't have the money to spend on these types of outside resources. So you're using that debriefing to sort of learn and to find out how you get better at crafting the narrative so when they read your, the evaluation teams are reading your proposal they're like, this is a winner, this is exactly what we're, they're hitting on all the, crossing all the T's, dotting all the I's exactly what we were asking for in the RFP it sounds like they clearly understand the problem that we're trying to solve and they would be the best fit for award, right? And so that's something that develops over time and that's why you see, you know, as companies mature then they, they really are getting into that entire process which could be in another 10 podcast episodes probably because it's, it's, there's a lot there to it, right? Right, okay, let's, let's change this a bit let's talk about bid protests. I have never done a protest on a job but I have had people protest my jobs or so I have had people, you know, I was a successful, well, they didn't award it to me but it was protested prior to the award, okay? So I don't know what you call it it's the pre-award or maybe it's a post-award because they knew, somehow they knew I won the contract so I guess it was a post-award, had to be a post-award, right? because they knew I was going to win it and they were challenging how could we win it and it was interesting because in my particular case the company that they were referencing their spec design product that was on a GSA schedule that was used as the basis of the design and so then we came in and we beat them and they challenged well how could they beat us on our own basis of design, right? and so that's that was the protest and then they dug through all of our stuff and eventually after about six months we end up, you know, we won it but you know I've never actually done a protest so what are some of the reasons why someone would want to follow a protest first let's start there, as a small business why would I even want to follow a protest? I lost fair and square, right? So at a base level protest is just a written objection you're protesting something so the question is then, what are you challenging? Well there's really two buckets you're challenging the terms of a solicitation so ambiguous terms internally inconsistent terms an unreasonable evaluation method there was a recent protest where a pre-award protest that was sustained because they were challenging the evaluation of a joint venture and specifically the requirement that the protege of a mentor protege joint venture was required to have the same level of experience as other offerors and GAO sustained that protest and said hey no the new regulation that came out in November says you can't do that, right? That's a great protest because now as a protege of a mentor protege team you're going to have a new solicitation, they're going to revise and amend the solicitation and say hey we're not going to allow the protege to meet that same experience requirement because that's what SBA's new regulation says so that's a great use of the pre-award protest, right? Now step back, SBA's new regulation says what now? So basically among the litany of changes that SBA made our 200 plus page rule change was past performance of joint ventures and they expanded it to basically say a procuring activity and I'm going to botch this because I didn't have it memorized it but it may not require the protege firm to meet the same level of experience as that required of other offerors generally, right? Okay, that's great. So the solicitation at issue there was requiring the protege of a JV or any other venture to meet that same experience and the protestor challenged that as contradicting SBA's recent regulatory change and that the protest was sustained. So those are sort of on the pre-award side, right? Obviously you can also have like unduly restrictive terms, right? Something that limits your ability to compete but on the post-award side you know you're the unsuccessful offeror and you're challenging an unreasonable technical evaluation and unreasonable past performance evaluation cost or price evaluation. Maybe there was disparate treatment or unequal treatment so you're saying wait a second. The source election says we liked Eric's technical solution for these reasons and you're thinking and that merited a strength and you're thinking wait a second I proposed the same thing why did I not get credited with a strength there, right? And so when we're talking about protest I think the key phrase that I tell folks is objective flaws Trump subjective flaws, right? I don't like that I didn't get a weakness I don't like that I didn't get more strengths. That is subjective, right? Sure. Tell me why but if you can put it to an objective procedural flaw Okay. Hey Section M said you're going to evaluate me on A, B and C. Okay. The rationale for the award decision was heavily on E, F and G which were not in the evaluation methodology. Why are they placing an emphasis on that? Because as a bidder you're thinking yourself how do I know and that's what they were looking for. Right. I would have written about that in my proposal. Sure. Or you know how could this person win with the past performance with getting the highest past performance rating when it doesn't look like their past performance they provided meets the same scope complexity or relevancy right? So how would that merit the highest rating? So all these things are used to sort of get at the heart of procedural flaws and the procurement. So when you're or a small business you know again you have those these two buckets, right? The pre-award challenge which must be filed prior to the proposal deadline, right? And there's some nuance there but that's generally what we're talking about are these ambiguous terms, unreasonably restrictive terms, contrary to regulation things of that nature. And then on the flip side is the you know I mean you have removal from competitive range but I'm going to the post-award side which is you know why did we lose, right? So and those are the things that you're looking for and as I mentioned earlier you know if you've got a stack of weaknesses and a bunch of significant weaknesses you may have a hard time overcoming those, right? But if you spend a significant amount of time, money and energy and bid and proposal dollars all this stuff on a strategic procurement you might know at the onset like if this goes awry we're going to protest because the value's too high I mean unfortunately you're seeing that a lot of these truly are like business decisions but they're also like what's going on here? Because at the end of the day I mean the reason that these decisions are going through GAO and they're published I mean it's about not just transparency but we're talking about taxpayer dollars at stake here, right? So the public has an interest in ensuring that their taxpayer dollars aren't spent on procurements that are basically given to your friends or they don't have a reasonable or rational explanation as to why it's going to this company versus the other or why are we selecting the company that's 30 million dollars more expensive? Well their technical solution was better and we think that that's a better use of taxpayer dollars to go for the solution that's higher technically rated rather than just lower priced which is almost the essence of best value which is that you're not always purchasing the lowest. Yeah, I agree with you but for the products that we look at they're still doing LPTA. There's a lot I mean and I know they changed the rule because they don't have to use LPTA but I can tell you this, I was in Clubhouse with a contact officer here in DC and she says oh I still use LPTA all the time. Well if you see a procurement solicitation that comes out for LPTA Yes. Check the FAR or if it's a DOD check the DFAR to see if it fits within the items that they say because now there's sort of a process that they need to do to sort of justify LPTA and if it runs afoul of that and if you think it does then that might be something right for protest. This should be a best value procurement not an LPTA because this is what says these are the requirements that you must meet in order to justify use of LPTA. I think there was a whole period of time when I think federal procurement goes in cycles I think there was a large period of time where LPTA was like but then when you're thinking yourself like why do IT services or cybersecurity services or software development I should software development be LPTA so you start getting those in and so they fix you know they by the way can you tell people LPTA we're using acronyms? Oh yeah lowest price technically acceptable. That's like the flip side of the best value when I talk about best value is the ability to make trade-offs between price and technical so you can have the ability to choose a higher priced product if you think that technically it's better for the agency or meeting their needs right. So these things sometimes get born out in protests and I think a lot of folks going back to what I originally said earlier about subjectives versus objective using that to sort of guide your decision making now obviously if you're coming out of a debriefing and you're with your LT and you're trying to figure out okay why do we lose team right you know bring the proposal folks and what can we have done better but if there's any indication that you think that there's an issue or like I said earlier that the dollar value is high or you're right on the line right I mean you know like it's very difficult to overcome a host of significant weaknesses and weaknesses and deficiencies right because you're going to have to show that you're prejudiced by these errors like you would have still had a chance to win the award even if GAO found that some of these errors were wrong and so if that's not the case knowing that off the bat can reframe your mind too going into a debriefing right because now you're not thinking I'm upset and I want to protest because you're like well it would be very challenging to win it to begin with right but if you're in a head-to-head battle and you've got better past performance and slightly better technical rating but the price is slightly different or maybe you think there's no way my competitor could could furnish this work at that price right and then you know and so of the numerous arguments that folks are making they're trying to figure out a way like what really went wrong and sometimes it results in corrective action sometimes it results in a sustain at GAO particularly and in some instances it may result in award although it's hard to say whether or not you will because you don't really know but you know it's possible that on reevaluation you can come out on top but you can't really anticipate that heading into it right and so this is part of the process I think there's some you know hesitancy on some companies because they're thinking well they're my customer it's like I didn't win a contract with Microsoft now I'm going to sue Microsoft for why did I win right and that's the unique thing about federal procurement is you have this ability to lodge these challenges I mean at GAO for example these protests have gone back I believe the first protest was somewhere around 1926 I think so I've been hearing them in some form or fashion for quite some time right and then with SEICA in 1984 and full and open competition and the GAO continuing to pick up the pace and you know now you see potentially 2000 to 2500 or so protests a year GAO provides a really great thing under SEICA they're required to provide congress with their bid protest annual report which has some statistics so we kind of see that GAO gets a number of protests a year which is why I think a lot of folks utilize that but you can also protest to the agency right but when you're going to GAO like I said they have that expertise because they have a group there that's handling these protests and so you know it's part of the process but some folks might think well I don't want to upset the agency or maybe this isn't right and I think there's business decisions that folks need to make in-house as to whether or not they want to protest right because there are some agencies I think seem more protests than the others and if you've got another procurement coming down the pike agency maybe you might be hesitant to say hey we don't want to upset that future thing with the same agency so we won't protest this one so there's a lot of things that I think folks in the C-suite are going to be thinking about when it comes to protesting and I think it scares folks away but again it's part of the process I mean if you're not the person that's protesting everything I think you're fine I mean you might have a contractor officer or a group of folks that are newer and they haven't really experienced it but if you're a DoD for example you know they understand it you know there may be some some you know I think the contracting officer core and the government is really great because they they're trained and they understand what's going on but it is unique because like I said you're not why didn't Microsoft give me that contract I'm going to sue them and find out why right one thing that you said was that you can protest directly to the agency to clarify that for me because I I only knew about protesting to the agency I didn't know about protesting anywhere else okay because again I did with the agency so I like what's the alternative to protesting to the agency so there's really three places you can protest okay there's an agency level protest yes then there's government accountability office GAO and then there's the court of federal claims now if you go to the court of federal claims and your protest is denied or you don't get the result you want you can appeal that to the U.S. Court of Appeals for the federal circuit right it does that it depends on the protest but you know there's that level well let me ask you this is there like chain of command so is that for a question so when we talk about protest you've got the agency level and then if you can go from the agency to GAO right and if you don't like GAO it's not an appeal to the court of federal claims right it's a separate entity because you know when we're talking about GAO is a legislative entity right they're not going to tell the agency what to do which is why their decisions are recommendations right because you're talking about executive versus legislative that's actually a really good point that you just made there you're right they are all recommendations yeah and almost always they're followed right but when you go to court now you have the judicial branch and you know at the agency level you know sometimes you protest a level above the contract officer and it's in house at GAO now you're dealing with agency attorneys on the one hand with the GAO attorney in the middle right they're going to be deciding it when you go to the court of federal claims now it's the department of justice attorneys who are defending the US and they will work with the agency attorneys but now you've got a judge overseeing it and now you've got you know DOJ attorneys as opposed to agency attorneys leading the protest and if like I said you can go to the court of appeal for the federal circuit and we've seen protests there they're not that many that go up I mean right now Oracle has filed a petition at the Supreme Court right and we all remember Kingdom Ware for a couple years ago that went up through the Supreme Court and they went through the federal circuit to get there because that's the way sort of protests kind of work did Jedi go that way? so right now there's the Jedi government in the court of federal claims which yesterday coincidentally the judge denied them the government and the intervener defendant Microsoft's motion dismissed she denied that the judge said no we're going to continue on right and Oracle this whole time has been protesting pre-award right so they had gone from the court of federal claims to the court of appeals for the federal circuit and they filed a petition for writ of sorcery at the Supreme Court which we're waiting for the briefing is happening but the government the Supreme Court has yet to grant cert or deny cert so that process is still ongoing but technically that's the other side of the coin to this Jedi procurement is there at the Supreme Court right now which is kind of interesting that's crazy and what I think that's fascinating and everyone here should be mindful of is that while we are small businesses and we're talking about small business procurement at the highest levels of you know capitalism in this country they're fighting over the same type of dollars that we're all going after oh yeah and these are you know this goes back to the concept that I said earlier high dollar value procurement or strategically significant procurement if you're a small business it might be a 32 million dollar base plus four option your procurement right that could be your Jedi because it's either a new customer or more workers than existing customers or it's just your first or second potential prime win and that's something that you want to win and I guess I would say this something I haven't really talked about is what you mentioned in the beginning which is intervening which is you've won the protest and someone's protesting your win was the intervener you have the ability at GAO and the Court of Federal Claims to intervene in that protest because you're the awardee of an interest in the outcome I don't know that that's interesting I didn't know that's something that you just taught me today yeah so that's I think underutilized but yeah if you're the winner and this goes back to what I mentioned I think earlier protesting is an adversarial process right someone's upset with the agency's actions and they're protesting a procurement right if you're the awardee you're thinking yourself the agency followed the far they followed the solicitation they followed the evaluation criteria in Section M they conducted a reasonable evaluation and the award should stand but if you're the unsuccessful offeror you're saying they made all these errors and this is how so the agency is going to defend they may or may not defend because they could obviously take corrective action but if you're the intervener now you have an opportunity to say wait a second this protest is untimely some of these grounds are really challenging the terms of the solicitation or they missed it by a day so now you're kind of getting an opportunity to get under the hood when you're at GAO most often if the protester proceeds with counsel there'll be a protective order issue that's something that's procedurally you'll have to deal with so you're not going to be able to see your competitor's proposal if you're trying to do it yourself so you sort of have to use counsel so let's go back to again as a small business if I am the intervener I can go to GAO if and they're protesting me they're protesting my award because you'll get notification hey Eric, your award has been protested by ABCCO and then if you want to intervene you can intervene and right now GAO they have the electronic protest docketing system so it's all electronic but if the protester proceeds with counsel and they ask for a protective order that means as an intervener you're going to want to do the same because you wouldn't be able to see the information that's really at heart of the protest if the protective order is issued because they're going to say well we're not going to see your and so as a protest attorney I develop relationships with clients I can't say what's protected and so I'm seeing what the proposal is of your competitor but I'm not telling you about it because of the protective order but if you don't have that opportunity then you're not going to be able to really effectively participate or defend it and but if the protester proceeds without it then there's a protester but that's let's get back to the small business guy let's get back to the small business guy I'm the small business guy, a girl and I'll give you a scenario I had someone that won an award and they were asked to produce some financial documents to show that they could support the contract they were not able to get that in time the documents is that something worth protesting to give me some scenarios of what things are worth protesting so that way someone listening to this can say okay this happened to me okay that's not worth protesting but if this happens then that's worth protesting alright so let's break it down into the two buckets again so if it's a solicitation issue so the RFP comes out if you think there's ambiguous terms because at the end of the day you want to be able to write a proposal and bid competitively and bid intelligently so what that means is I want every I want to make sure that I'm being judged apples to apples against my competitors right so if you think there's something that's internally inconsistent in the evaluation methodology or something that's ambiguous that's going to prevent you from doing that because at the end of the day if you don't file that challenge it's sort of locked in so you can't roll the dice on something that's ambiguous or something that you don't like in a solicitation lose the award and then try to challenge and say what you did and this and this because GEO is going to say the time to challenge the solicitation was prior to the receded proposals because that's going to prevent unnecessary protests because you have a firm cutoff if it's an issue with the solicitation you've got to file it before proposals do or else it's going to make it or something that restricts competition it could just be sometimes it's brand name but we get that all the time with brand name yeah there's that but there's brand E more equal but they say you have to have X sometimes it could be your prime sub you've got to have the past performance as a prime contractor and you're saying yourself I have done this exact work but I was a subcontractor maybe that's right for a restricting competition because I've done the work I did it as a subcontractor but not as a prime if they're saying you have to have done it as a prime then you might be leaving yourself well that's preventing anyone that has never done a prime contract from ever competing right but the agency can come back and try to justify these things right and so that's sort of the rub here you got the agency on one hand trying to say this is what meets our needs and this is reasonable and you're trying to make the argument that this is unreasonably unduly restricting competition I think part of the Oracle protest sort of dealt with that because they were upset about one of the gating criteria you know I think it had to gosh I'm trying to remember now it had to deal with data centers and data usage and how much you used at a certain period of time to be able to handle the capacity of what was thought to be needed for the Jedi procurement as a whole right you got to be able to show us that you can do it and I think they were upset that it was sort of potentially arbitrary the way they just picked it so that's sort of the pre-award side on the post-award side again you know if you've lost and you've thought you have a competitive proposal then you're looking for those procedural flaws and the technical evaluation past performance evaluation price if it says if it's a firm fixed price contract and the procurement calls for a price realism which is you know if your price is too low and we don't think that means you understand what's going on and it's going to increase risk if that's in there on a firm fixed price contract and if your 40s price is too low you might say hey they they should have done a price realism analysis and understood that this person doesn't really understand the gravity of the procurement they're 30 million dollars lower than next next highest bidder right but again that's in a narrow situation so in that particular situation you would be protesting to kick them out because of the based on the price realism and you have unrealistic prices which are too low right but in a firm fixed price the risk is on the contractor so typically they're not required unless the solicitation calls for one right and if the solicitation calls for that analysis and the awardee's price is too low as a business you might be thinking how can they have won this contract at that price do they even know what's really important now I get that all the time in construction because you know your competitors not even forget the competitors if you know I'm building this building that we're in and I know what it costs to buy the steel and you're pricing it below the cost to buy the steel something's wrong that's something so the nature of a GAO protest for example when you're filing your protest it's really two parts right you have your initial protest filing and then 30 days later you're getting the record agency takes corrective action when you get the record that's when you get more documents right and if your attorney's under the protective order they're able to see the source selection documents how they made the evaluation you're able to see the attorney's able to see the proposals and then if they can get into the weeds of the evaluation that might be something where they say hey wait a second Eric's company proposed A, B and C and he got a strength for that we proposed A, B and C it's right here on page 32 of our proposal you've got to credit us with a strength why not and you're thinking yourself well that that would be another strength in our column that made us more competitive and then if that like I said at the end of the day you're trying to get yourself into most often trying to get to a re-evaluation because you cannot guarantee at that point in time that you're going to win the award but maybe and this is a subject for a completely separate podcast but when you learn the notice of award what the editor is your first thought might be aren't they affiliated with some other company how can they do that work oh wait they subcontract with this other company maybe they're not even a small business based on SBA's affiliation rules so you're going the SBA size protest route again subject for a different podcast but that's another thing that folks might be thinking about when they receive notice of award because now you know who won and based on that information you might be thinking well how are they a small business if I look them up on USA spending it seems like they might be over that and so there's a number of things that are available for unsuccessful offers and government contractors to sort of navigate this landscape because at the end of the day particularly for small business we want to make sure that these procurements are going truly small business and if that's not the issue and you're just talking about GAO protest you're looking to make sure that your proposal was even handedly evaluated against others so I mean you could go on for a long time on the subject because there's a lot of nuances along the way but you're right the large folks are protesting and the smaller contractors have their reasons for protesting as well well I think as a small business it seems like it would cost me a lot of money like it just seems like a what is the word I'm looking for for lack of better words it seems like it could be a wasted effort just pouring money down a hole I lost a contract yeah I've invested a lot of money and time into it but at the same now I'm going to dump even more money into this thing when I can just move on mentally and I can move on organizationally and with my team to go push to someone else because I would imagine that doing a protest means I have got right and information related to all the correspondence that took place like that's what I had to do when I went through the protests they requested all the they took through all the emails that took place between us and the contracting officer representative and we had to submit some other like paperwork stuff it's time it's another investment yeah I think there's really three so you have remember how I mentioned earlier that there's agency level protests GAO protests and quarter federal claims the agency level protests are typically seen as the least expensive route because often times you're filing the protest and then you're waiting for the result at GAO it's a little bit more expensive because you have a little bit more briefing if the agency doesn't take corrective action but that's the caveat because if you have some information based on your debriefing and the agency takes a look at the record then you might only be filing your initial protest and then the agency takes corrective action that occurs in about 47% of protests wow and that is inclusive of protests that were filed perhaps untimely or just really didn't have a legal or factual basis right so it's pretty high the sustain rate if it goes through the entire process I think was 15% but that's if the agency doesn't take corrective action now it's a little bit more expensive when you go to the quarter federal claims because it's a court and you file the quarter you have the rules that the court sets forth for having to file a protest there's a lot of decisions and things like that that sort of going back and forth so it's a little bit more time consuming in terms of what you need to do to produce it but the costs vary depending on the form you choose and even at GAO like I said you might only file the initial protest and then the agency takes corrective action and then you're like okay I got the result I wanted so it's part of the I think calculus for the leadership team and this goes back to planning we spent X amount of money and we know the customer, we know what they want we did our due diligence we put together the team that we thought was necessary to win and our strengths and weaknesses are very similar why did we lose and that's something that they're knowing you don't want to be in a position where you're just throwing good money after that that's what I'm trying to say that's where you get sort of especially if you're talking about the debriefing using that information to kind of inform the decision but also do you really have a valid basis to protest to begin with because I said if you've got a bunch of significant weaknesses or weaknesses trying to overcome that might be challenging in a protest so then you might be thinking maybe we don't because now we're for government contractors before I start practicing law okay when we won an award it was like caramel ice cream cake in the conference room everyone's excited but when we lost an award it was a somber attitude because sharing an office with is going to a different batch flipping to another contractor the makeup of the company's changes because the seats are being emptied and offices are being emptied and things of that nature so if you're a small business it can have a really big impact depending on who wins the award I think folks need to cautiously look at these but it is legal work it is an adversarial process especially at GAO and the court and again at the agency sometimes you're just filing the protest and you're waiting so that's part of the process but you don't want to be in a position where you're again throwing the good money after bad so that's where the due diligence of really taking advantage of the debriefing comes into place because then you kind of have at least a better understanding of why you're moving forward and you can always withdraw for example I had an FAA protest one time where I sat down with the CEO and he was convinced that the pricing was wrong and he showed me on an Excel spreadsheet everything explained why the pricing couldn't have been right the way that the evaluation went and after I received the record I was like hey look this doesn't really add up maybe we should think about withdrawing the protest because why would we continue going on if I didn't think there was some merit to the protest as a whole so that was a situation where we thought there was an issue that we thought it was once I got the record and then we withdrew the protest grounds and the the company was happy because it confirmed nothing bad happened and he moved on and again this goes back to the strength of the debriefing I think in some instances folks want to protest because they want the information to find out why did I why didn't I win and sometimes having a more productive debriefing might resolve that issue I think there have been some data out there that suggests that there has been a positive impact on the enhanced debriefings with respect to the type of protest that are coming before GAO you said you had a some kind of tip sheet that you created oh yeah so I have it's a debriefing and bid protest tip sheet sort of like a one pager that kind of I hand out to folks that kind of has some of the debriefing items that I talked about today the items under FAR Part 15 where can we find that document if you want to reach out to me on LinkedIn I can give it to you as a pdf to put it on the website I have it on my blog as well what's your blog govcon judicata so it's g o v c o n j u d i c a t a dot com so if you just find debriefing on the side panel one of the articles I wrote will probably have it linked to it and then what I'll do I'll make sure that we have it so they can have it downloadable yeah it's just a desk reference to help guide we'll put it in a drop box folder we'll put a link to it on the site again I didn't want to get into the specific dates and the timelines because that's all information that people couldn't find out I don't want to go into the weeds I feel like we've been to the weeds but I don't want to get into the actual weeds of the dates especially because as far as even what you're mentioning the rules and everything change and so maybe there's a lot of days today maybe next five times comes out it's five days oh yeah there's a lot of procedural hiccups that can can snag a protest right GAO is very strict on timeliness so that's something to think about there's timeliness issues with debriefing so the whole host of things that folks need to be thinking about if they're gonna choose that route which is why they should head into these things prepared but I get your point yeah that's just me that's a me thing because I feel like when you are at that stage and you're ready to do that then it's a time to go look up the dates and like you know if you don't have a solicitation or anything that you or a contract or anything that you've submitted that you're potentially engaging on a protest it's irrelevant but for me the information this information high level is important because now we've given people a whole bunch of scenarios in which it makes sense or it might make sense for them to consider when to protest versus when not to protest oh yeah it's good to have that the light bulb goes off the moment I think I heard that on the podcast or I think I read something about that this is something we want to look at and that way you can inform because the last thing you want to do is be in a situation where you wish you could have done something right you're like oh I didn't know I could have done I should have protested this solicitation because that's not what I thought it meant right so this is great that you gave people the things now can we just recap about those buckets again I like to sometimes repeat it over and over again because people look it's a lot of information for protest you've got again you have the agency and the GAO and the quarter federal claims and there's FAA has its own thing they don't follow the FAR but let's talk about that and then we're talking about the two types of protest buckets we're in the pre-award bucket and then we have the post-award bucket so you've got ambiguous terms generally inconsistent terms terms that restrict competition provisions that you think violate regulation I mentioned the past performance and experience example or if you think the evaluation method is somewhat unreasonable and then you've got the post-award protest which are unreasonable technical evaluation, unequal or disparate treatment unreasonable past performance evaluation pricing disparate I mentioned disparate treatment there's no need to follow the evaluation criteria or just traveling outside of that making the award if it appears that the main discriminators for the award decision weren't really what was in section M as the announced criteria you might be thinking wait a second had I known that's what they were looking for I'd have written a proposal that kind of catered to that and so there's some nuance there and the way these issues sort of come out in protest decisions which they're available for folks at GAO.gov and click the header that says bid protest you can read these bid protest decisions at GAO and a lot of folks do to sort of get an idea of how GAO is adjudicating these things right that way you kind of know what to look for but that's sort of like the high level overview of protest and then you also said when you're protesting to consider objective versus subjective exactly yeah so if you're it can be difficult because if you spend a lot of time money to get to a position you might be a little heated and upset for why you lost but take that emotion out and really get to the heat of the argument which is is there a procedural hiccup that I can identify now as I mentioned earlier really protesting against you know less than a full deck right like you've got a little bit of information from a debriefing right so that's the only information you really have to go on you might have some other outside materials kind of it then when you get to the agency report you're under the hood of the protest right now you can see what's kind of engines under here right like what does the evaluation look like what is the source election team saying what is the protestors or the awardees proposal look like how are they evaluated how are we evaluated now you've got insight into the actually what really transpired and that might confirm what you wrote right so then you're kind of commenting on that and you might uncover other protest grounds and you'd have supplemental protest grounds based on other new information that you discover through the administrative record right I guess one thing to note on that point is at GAO you have a slightly different administrative record than you would see in the court because the court you'll get a more robust record require the agency to provide everything at GAO it's you know relevant documents right so it's some nuance but not to think about now yeah no and I have looked at court records and it's very confusing but the GAO reports I can read them and understand them they're much simpler yeah they'll provide like a memorandum of law the contract offers a memorandum of law you'll have an idea of why the agency is justifying their reason and then you know you have a bunch of pdfs with tabs on it like right so that's sort of a high level overview of the protest you know process again highly procedure specific so there's a lot that we didn't cover today well means please don't treat this as anything other than just a conversation not legal advice so if you do have that talk with an attorney no I agree with you no and I agree you know we tell people that all the time right again we are here providing high level information overview your particular situation is going to be specific to you in nature and so at that point you should seek counsel so that's definitely something that we say and if there's any legal words we need to put on the screen we'll do that trust me I've interviewed the government people so they make me put like red letters and red before the screen comes up so I've done it before but hey Josh listen great conversation debriefing and big protest today some final words you want to say to folks out there I just appreciate everyone that's listened to the end and you know catch me on LinkedIn or matrossedwards.com or my blog GovConJudicata and as always check out GovConGiants because there's a lot of information I think for small businesses I think the theme that I try to provide is thought leadership and information so that they have the tools and resources to know okay here's an issue that I might need to think about I saw it on GovConGiants or heard it on a podcast it makes the flag go up in my mind and then make decisions based on that sort of seek counsel whether it's cost or pricing proposal, personnel, lawyers or accountants and things of that nature so this is great really appreciate the opportunity to connect with you today I'm always learning I tell people you know I'm a student myself so again I'm a small business owner I practice this stuff and again the world of GovConContracting is really really large and there's a lot of information out there absolutely and so again if we could try to help people understand you know bit sized pieces of it you know one chunk at a time that's what we're here to do so thank you so much for being on today thanks for coming down to visit me and doing this live interview this is great alright thank you thanks for sticking around make sure to pick up your copy of my book GovCon Launch and the Amazon stores today if you have any questions for Joshua and his team all of their contact information will be in the show notes on our website GovConGiants.com and if you're curious to learn more and you're curious about law and legal in terms of government contracting visit their blog over at GovConJudica.com that's GovConJUDICATA.com thank you so much stay blessed