Webinar: CMS Reverse Industry Day, August 3, 2023, 10:00am EDT

On behalf of CMS (Centers for Medicaid & Medicare Services), the National Contract Management Association (NCMA) and the Professional Services Council (PSC) will host a 90-minute virtual industry-led discussion, with our very own Nicole Pottroff as a presenter. The webinar will provide an in-depth look and interactive conversation regarding CMS procurement protests–the common factors and considerations contractors take into account when deciding whether to protest CMS procurement decisions, when to protest them, where to protest them, etc.–and what actions CMS program and contract officials could take during the procurement process to reduce the likelihood of a preventable protest and help ensure fair and transparent competitions and acquisitions. Topics may include:
• Current protest trends at CMS and comparisons to HHS and other civilian agencies;
• Recompetes v. new requirements – understanding the incumbent advantage and how to ensure fairness for all;
• Joint Venture (JV) and Mentor-Protégé JV arrangements and small business set aside decisions;
• Price realism / avoiding the “race to the bottom”;
• Best value trade off decisions v. Lowest Price Technically Acceptable (LPTA) evaluations;
• Different types of evaluation methodologies (e.g., oral presentations, coding challenges, self-score cards, etc.);
• What makes a quality debrief; and
• Industry answers to Government questions regarding protests.

Please register here for this informative event.

Back to Basics: GAO’s Protest Timeliness Rules

Here in Kansas, it is certainly starting to feel like thunderstorm season–and one of my favorite seasons, I might add. But over in D.C., some may say it is starting to feel like protest season! That said, anyone familiar with the protest process at D.C.’s Government Accountability Office (GAO) is probably also quite familiar with the strict timeliness rules GAO applies to such protests. And frankly, even for the seasoned GAO protesters, a refresher on the timeliness rules can be quite beneficial–especially given the answer to when a certain type of protest is due is not always an easy calculation. So, let’s take it back to the basics and run through some of those rules here.

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Nicole Pottroff Weighs in on Bias in the Procurement World in Forbes Article

Tuesday, March 29, Forbes.com published a fascinating article written by Dr. Gleb Tsipursky entitled, Prevent Costly Procurement Disasters: 6 Science-Backed Techniques For Bias-Free Decision Making. In the article, I weigh in on the subject of bias in the bid selection process for federal procurements. I discuss some of the ways the ever-developing science behind implicit bias could potentially be utilized in bid protests challenging source selection decisions as biased–which is currently one of the toughest protest challenges to win.

As you can read more about in the article, government officials are presumed to act in good faith and the standards for proving otherwise are difficult to meet (essentially, you need a “smoking gun” to win a protest on bias alone). This article thoroughly discusses the current protest landscape for challenging bias, the ways procurement officials can work to mitigate or eliminate bias in the procurement process, and the potential interplay of the science behind bias in both the procurement and protest processes.

Third Time’s the Charm: Protest Sustained by COFC Due to Failure to Conduct Discussions and Flawed Price Reasonableness Evaluation

Proving that an agency acted improperly in its source selection process can be a difficult task for any protester. In theory, for a best value tradeoff decision, the agency’s decision and the process to come to that decision seems easy: the agency does a tradeoff between cost and non-cost factors, and that which is most advantageous to the government is awarded. How hard could it be? And the decisions handed down by the Government Accountability Office (GAO) and the Court of Federal Claims (COFC) seem to confirm that it isn’t that hard, seeing as many cases challenging a best value decision are denied. This is, in large part, due to the discretion agencies are afforded in their source selection decisions. Whether an agency conducts discussions during the source selection process is one of many procurement factors that is left up to the agency’s discretion. But, every so often, a decision comes along to prove that there are limits to an agency’s discretion, and in this case, the agency’s discretion overstepped its bounds with its price reasonableness decision and the unjustified decision to not perform discussions.

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Key Personnel Unavailability Leads to Sustained GAO Protest

Key personnel are an important term in many proposals. Establishing the resume, experience, and availability of personnel that will perform major functions of a contract is a key (dad joke) aspect of a winning proposal. As one offeror found out, when key personnel become unavailable, the technical acceptability of the entire offer can be in jeopardy.

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GAO Affirms any Discussions During Evaluations Must be Meaningful

Evaluation of offers is a crucial point in the procurement process. During this time period, an agency may, in certain procurements, reach out with discussion questions meant to bring clarity to the decision-making process. However, any such discussions must be meaningful.

As one offeror recently found out, meaningful discussions even apply in so-called simplified acquisitions.

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Inadvertent Release of Incumbent Pricing Data Leads to Sustained Protest

Protecting sensitive business information, especially pricing, is essential even in the GAO bid protest realm. As an agency found out, even an inadvertent release of such information could lead to a sustained protest.

This slip up resulted in the cancellation of a nearly $1 billion contract. Needless to say, this was a big deal. How did this happen, and what should parties be looking for to protect their confidential data?

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