Georgia Tech Procurement Assistance Center

“Workin’ 9 To 5” –but not in a government office: Requesting a debriefing

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In Exceptional Software Strategies, Inc., B-416232, the Government Accountability Office (GAO) recently addressed the obscure rules for when a disappointed offeror must request a debriefing.

It’s generally well known that, in procurements where offerors may have a right to debriefings, a disappointed offeror must submit a written request to the contracting officer within three days after receipt of written agency notice that the company’s proposal has been excluded from the competitive range (FAR 15.505(a)(3)).

If an offeror misses the deadline, it does not necessarily mean it won’t get a debriefing, but any debriefing will not be “required.”

In Exceptional Software, on Thursday, March 15, the National Security Agency (NSA) provided the protester with written notice that its proposal was excluded from the competitive range and provided a brief rationale for that exclusion. Under FAR 15.505(a)(3), the offeror then had three days – until Monday, March 19 – to request a debriefing. (When the third day falls on a weekend or holiday, the deadline always moves to the next business day.) On Monday at 4:59 p.m., the offeror submitted its written request for a debriefing, which the NSA provided on April 2.  Four days later, the offeror protested.

Under the GAO’s debriefing exception, a protest is timely if it is filed either within 10 days after the protester knew or should have known of the basis of protest, or within 10 days after the close of a required debriefing.

Keep reading this article at: http://www.mondaq.com/article.asp?articleid=728628

New rules for filing protests at GAO and new DFARS debriefing requirements

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The Government Accountability Office {GAO) finally has unveiled its long-awaited Electronic Protest Docketing System (EPDS).

Effective May 1, 2018, all new protests (excluding those containing classified material) must be filed using GAO’s EPDS.

In addition, the National Defense Authorization Act (NDAA) for 2018 enhanced debriefing requirements for all contract and task order awards valued at $10 million or more. Under the new rules, contracting officers must provide unsuccessful offerors an opportunity to submit additional questions related to the debriefing within two business days after receiving the initial debriefing. The agency then has five business days to respond after receipt of the questions.

See details on both of these new requirements at: http://www.mondaq.com/article.asp?articleid=697940

New debriefing rules in effect for DOD contractors

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As discussed in an earlier post about the NDAA for FY 2018, one of the most significant changes with respect to procurement issues may be related to the DoD’s conduct of debriefings.

Perhaps missed in the discussions of a potential new protest regime going into effect in a couple years is the fact that one of the most significant debriefing changes is effective immediately without the need for a new regulation.

Specifically, Section 818 of the NDAA required that DoD agencies provide disappointed offerors with an opportunity to ask follow-up questions “within two business days after receiving a post award debriefing” and provided that the “5-day period” associated with the timeline for a CICA stay “does not commence until the day the Government delivers to a disappointed offeror the written responses to any questions submitted” pursuant to the new rule. Because these provisions of the NDAA amended the underlying statutes (10 U.S.C. § 2305 and 31 U.S.C. § 3553) instead of requiring the Secretary to amend the DFARS, these rules went into effect upon the signing of the NDAA. In fact, in a few cases since the NDAA went into effect, we have seen DoD agencies agree that the new rules are in effect.

So, what do contractors need to know?

Keep reading this article at: http://www.mondaq.com/article.asp?articleid=674748

GAO: Protest filed within 10 days of debrief still untimely

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The Government Accountability Office’s recent decision in Protect the Force Inc.—Reconsideration demonstrates the importance of understanding GAO’s prior case law and carefully following the rules set out in its bid protest regulations.

GAO-GovernmentAccountabilityOffice-SealIn the September 30, 2015 decision, GAO denied a request for reconsideration by Protect the Force, Inc. (PTF) finding that, though PTF filed within 10 days of a required debrief, its protest was untimely because PTF did not file within 10 days of an alleged solicitation impropriety on which its protest was based.

On July 27, 2015, after the submission of final proposal revisions, the U.S. Army notified offerors it was amending the maximum dollar amount for a line item in the request for proposal (RFP). The Army declined, however, to provide offerors with an opportunity to submit revised proposals in response to this amendment. Two days later, the agency notified PTF that it was eliminated from the competition. PTF timely requested a debriefing, which the agency provided on August 5, 2015. Five days after the debriefing, PTF filed a bid protest at the GAO challenging the agency’s amendment to the RFP. To recap the timeline of PTF’s protest: PTF filed 14 days after the agency amended the RFP, 12 days after PTF was eliminated, and 5 days after it was provided with a required debriefing.

Keep reading this article at: http://www.mondaq.com/article.asp?articleid=440708

Recent improvements in government contract bid debriefings?

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Debriefings of unsuccessful government contract bidders are unusual events with little parallel in commercial contracting. The regulations are confounding on whether a debriefing is required, when the debriefing should be provided and what the debriefing must contain. One almost needs an expert just to decipher the debriefing rules in a particular situation.

Often, the attendees come to the table with very different agendas. Theoretically, a debriefing is an opportunity for disappointed bidders to learn from the government how to improve their proposals for the next procurement. From the government’s side, another objective is to give the contractor sufficient explanation of the award rationale to dissuade the contractor from filing a protest.

But some contractors approach the debriefing as a vehicle to trap government personnel into admissions that can be used against it in protests. Not wanting to be victimized under the guise of aiding a contractor to improve, agencies have responded by offering only a written debriefing, providing the contractor as little information as possible.

Keep reading this article at: http://www.afcea.org/content/?q=Blog-recent-improvements-government-contract-bid-debriefings

Protest deadline not met because debrief not required

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Yet another unwary government contractor has been turned away by GAO because it failed to file its protest on time. Unsuccessful offerors that contest evaluation issues (rather than solicitation defects) have 10 days to file protests at GAO.

GAO-GovernmentAccountabilityOffice-SealThat generally applicable 10-day deadline is tolled when a “debriefing” is required in FAR Part 15 (and certain Part 16) procurements. But that tolling rule doesn’t apply when the FAR only requires that the agency provide an “explanation” to disappointed offerors (e.g., in FAR Parts 8, 12, and 13 procurements)—and does not mandate a “debriefing.” GAO’s decision in Gorod Shtor illustrates this rule by dismissing the protest of an offeror that fell into this bid protest trap.

Gorod Shtor wanted to sell drapery making and installation services for the U.S. embassy in Moscow. Gorod Shtor submitted a proposal for an IDIQ contract with the Department of State. Importantly, the RFQ was issued as a commercial item acquisition (under FAR Part 12) in which simplified acquisition procedures were applied under FAR Subpart 13.5. Award was to be made on a lowest-priced, technically acceptable basis.

The Agency’s award notice informed the disappointed offeror that the contract was awarded to a competitor, which Gorod Shtor believed did not meet certain RFQ requirements. The notice also stated “[i]f you desire a debriefing, please refer to FAR [] 52.212-1(l)” which lists the types of information to be provided by a debriefing but does not create a right to a debriefing. Gorod Shtor requested a debriefing and was informed of “the reasons why the agency had found the vendor to be technically unacceptable.”

Keep reading this article at: http://www.mondaq.com/article.asp?articleid=402044

Customs and Border Protection agency offers more information to losing bidders

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Customs and Border Protection’s IT technology acquisition operation is developing ways to help explain to unsuccessful contract bidders why they lost out to competitors, according to the agency’s top IT acquisition official.

In remarks at a presentation on acquisition and programming at FOSE in Washington, D.C., Guy Torres, CBP director of IT contracting, said he and his legal team had developed an “explanation plus” document to provide more information to vendors bidding under Federal Acquisition Regulation. The FAR can restrict providing explicit information on some bids to vendors. Torres said he wanted to provide some information to help vendors understand why they may have lost, instead of providing only a short statement that they didn’t get a contract.

Keep reading this article at: http://fcw.com/articles/2014/05/13/cbp-informs-losing-vendors.aspx

DoD, TSA and HHS officials provide contracting advice to small businesses

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The Pentagon’s point woman for hiring women-owned small businesses said this week that she “needed a lift” from the travails of furloughs and sequestration.

“This is a tough time for the federal government and DoD in particular if your’re concerned about small businesses,” said Linda Oliver, deputy director of the Defense Department’s Office of Small Business Programs. “Our travel dollars have been cut to nonexistent, our training dollars cut. I’m not second- guessing the decisions, but it’s kind of a down time.”

Speaking on Tuesday to hundreds of current and prospective contractors at the American Express Open’s annual summit, Oliver’s chief advice was to take advantage of the “debrief,” the optional meeting companies may request within three days of learning that they have been eliminated during a contract award process. “The debrief is not on the contracting officers’ list of fun things to do, since they fear they’re being set up for a bid protest,” she said. “But it’s really valuable and gives all involved perspective and closure,” she said.

Keep reading this article at: http://www.govexec.com/contracting/2013/08/despite-sequester-agencies-continue-hiring-women-owned-contractors/69104

 

What goes on behind a contract debriefing?

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Contracting officers oversee many moving parts in the complex procurement process. But perhaps no other element of contracting strikes fear into their hearts more than the debriefing.

For most procurement awards, contractors that were not selected can request to receive information on why they did not win, either in letter form or a sit-down meeting. Contracting officers worry that in-person debriefings, in particular, might disclose information that would trigger a bid protest. Managing debriefings is a tricky balance, but doing it right can save agencies time and money.

Keep reading this article at: http://www.govexec.com/management/management-matters/2012/08/post-game-review/57135/?oref=voices-top.  

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