Draft 2020 NDAA Changes Mandatory DoD Debriefings and Permanently Authorizes DoD Mentor-Protégé Program

On June 11, the House Armed Services Committee published its draft of the 2020 National Defense Authorization Act (NDAA), which was updated June 19. Among other proposed sections impacting small business contractors which will be discussed in future blog posts, the draft reduces the monetary threshold for comprehensive Department of Defense debriefings and renews the DoD’s Mentor-Protégé Program.

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Section 809 Panel Recommends Eliminating COFC’s Ability to Consider Protests After GAO’s Resolution

Among its suggestions to streamline the acquisition process, the Section 809 Panel has proposed to eliminate the ability to file a protest at GAO and the Court of Federal Claims. Instead, the Panel would require protesters to choose between filing at GAO or the Court.

Let’s take a look.

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Under FAR Part 16 Task Order Solicitation, Agency Can Establish Competitive Range Without Notification

Under FAR Part 15 negotiated procurements, an agency must give notice and an opportunity to request a debriefing to offerors eliminated from the competitive range. But the notice requirement does not apply for task and delivery order procurements under FAR Part 16 where FAR Part 15 is inapplicable.

A recent GAO decision highlights this distinction.

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GAO: Agency Closing Time is 4:30 p.m., not 5:00 p.m.

Unless an agency designates different business hours, the FAR says that a government agency is deemed to close at 4:30 p.m. local time–not 5:00 p.m., as it would be easy to assume.

In a recent case, the 4:30 p.m. closing time cost an unsuccessful offeror a chance at a GAO protest because the offeror’s debriefing request, sent to the agency at 4:59 p.m., was deemed untimely.

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Bid Protest Filed After “Non-Required” Debriefing Was Untimely, Says GAO

GAO’s bid protest regulations provide strict timelines for filing a protest.

Typically, a protest challenging an award must be filed within 10 days after the basis of the protest is known or should have been known. There is an exception to this rule for protests filed after a debriefing, but only when a debriefing was required by the FAR. As one contractor recently discovered, where a debriefing is not required, GAO’s bid protest regulations are not nearly as forgiving.

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DoD Immediately Implements Portion of Enhanced Debriefing Requirements

The DoD has issued a class deviation to immediately implement part of the the enhanced debriefing requirements mandated by the 2018 National Defense Authorization Act.

In a class deviation issued on March 22, 2018, the DoD says that, effective immediately, contracting officers must comply with new requirements allowing unsuccessful offerors to submit questions–and postponing the ticking of the “protest clock” until after answers are received.  But the class deviation doesn’t fully implement the 2018 NDAA’s enhanced debriefing requirements; the portion of the statute calling for the disclosure of redacted source selection information is not addressed.

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Small Business GAO Bid Protests Are Less Successful, RAND Study Says

GAO bid protests filed by small businesses are (statistically speaking) less likely to succeed than protests filed by large contractors, according to the RAND Corporation’s recent bid protest study.

The disparity isn’t the result of discrimination against small businesses, but rather a product of other factors: primarily, the motivation to protest, the understanding of the protest system, and access to legal counsel.  RAND raises an important point, but offers no fair and easy solution.  Perhaps, given that protests overall are “exceedingly uncommon,” a solution isn’t needed–but it’s wise to think about whether there are ways to help small businesses become better educated about bid protests.

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