Depending on the type of procurement, an agency will often provide either a brief explanation or debriefing after an award is made. But those explanations are difficult to challenge, as a recent GAO decision confirmed.
In the decision, GAO dismissed a protester’s challenge to the sufficiency of a two-paragraph explanation. Protester failed to show competitive prejudice or regulatory deficiency in the explanation. Since the protester could not demonstrate either of these conditions resulted from the explanation, GAO dismissed these allegations.
When protesting to GAO after receiving a brief explanation, what do you need to know in order to get your foot in the door? Let’s take a look.
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.
GAO’s bid protest window for debriefings—which closes 10 days after the required debriefing—knows very few exceptions. But what if the agency offers you a more informative post-award debriefing in place of the pre-award debriefing normally required upon your elimination from the competitive range? This option will likely improve your ability to compete for future contracts with the agency. Shouldn’t you be able to accept it without giving up your right to protest? GAO says no.
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.
Almost a year ago, we wrote of a memorandum from the Office of Federal Procurement Policy urging agencies to strengthen the debriefing process. OFPP’s rationale was simple: because effective debriefings tend to reduce the number of protests, agencies should be inclined to enhance the debriefing process.
Congress seems to have taken note: the 2018 National Defense Authorization Act requires the Department of Defense to make significant improvements to the debriefing process. That said, those improvements are limited to large DoD acquisitions, leaving many small businesses stuck with the much more limited debriefing rights currently available under the FAR.
You’ve submitted a great proposal, but then you get the bad news – you lost. As most seasoned contractors know, an unsuccessful offeror often can ask for a debriefing from the agency and in doing so, hopefully get some valuable insight into its decision-making process. Many also understand that the benefits of asking for a debriefing may include extending the timeline for filing a GAO bid protest.
But not all solicitations are subject to the same debriefing regulations, and depending on how the procurement was conducted, an offeror might not be entitled to that extended deadline–as one company recently learned the hard way in the context of a GSA Schedule procurement.
A protester’s failure to timely file its bid protest at GAO is almost always certain to lead to the dismissal of its protest. But knowing when the clock starts running for an offeror to file its protest isn’t always clear.
This uncertainty recently tripped up a would-be protester seeking to challenge its exclusion from the competitive range—because that offeror failed to request a pre-award debriefing, its attempt to protest its exclusion following the award and a post-award debriefing was untimely.