Georgia Tech Procurement Assistance Center

NDAA requires Contracting Officers to provide information to unsuccessful offerors for task and delivery orders valued under $5.5 million

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The annual National Defense Authorization Act (NDAA) has long been used to impose government-wide procurement reforms.  The recently enacted NDAA, signed by President Trump on December 20, 2019, continues this practice, by requiring agencies to provide unsuccessful offerors on smaller dollar task or delivery orders above the Simplified Acquisition Threshold an explanation as to why their proposal was unsuccessful as well as the rationale for the award.

Currently, agencies are not required to provide debriefings to unsuccessful offerors on FAR Part 16 task or delivery orders smaller than $5.5 million, leaving many contractors with no explanation as to why their offers were not successful.  Section 874 of the FY 2020 NDAA requires that Federal Acquisition Regulation (FAR) 16.505(b)(6) be amended to provide that, upon request by an unsuccessful offeror, the Contracting Officer on a contract above the Simplified Acquisition Threshold and less than $5.5 million shall “provide a brief explanation as to why such offeror was unsuccessful that includes a summary of the rationale for the award and an evaluation of the significant weak or deficient factors in the offeror’s offer.”

Continue reading at:  Pillsbury

GSA launches enhanced debriefing pilot, but why not make it permanent?

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The perception that bid protests are mucking up the federal procurement process is one of those urban myths that will not die, like how Paul McCartney died in a car crash in 1966 or that the Air Force hides away UFOs in the desert.

Despite the fact that these “theories” are continually disproven, the myths just will not go away. Plenty of people swear they hear “Paul is dead” when you play “Revolution No. 9” backward.

For instance the most recent attempt to limit bid protests to improve acquisition is from the Section 809 panel. It recommended making substantial changes to the federal bid protest process by limiting vendors to filing before the Government Accountability Office or the Court of Federal Claims, but not both, as well as prohibiting protests of contracts for “readily available” products or services of less than $15 million.

The Senate Armed Services Committee a few years ago tried to “restrain” bid protests by making it harder on contractors to bring complaints before the GAO.

Despite the well-known fact that protests impact less than 1 percent of all procurement actions a year, there is this ever-present concern that bid protests are fouling up the system and a major part of the reason why federal contracting takes so long.

Keep reading this article at: https://federalnewsnetwork.com/reporters-notebook-jason-miller/2019/02/gsa-launches-an-enhanced-debriefing-pilot-but-why-not-just-make-it-permanent/

Transparency in debriefs would improve competition, help small businesses

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Taxpayers have the right to know how the government is spending their money.

After all, the insights gained from total transparency in the federal procurement process can hold agencies more accountable. For this reason, administrations and congresses have undertaken initiatives to boost transparency and improve oversight of federal government spending on a bipartisan basis.

A few efforts stand out, such as the Clean Contracting Act, USAspending.gov and the DATA Act, but outside of these select few, transparency is still lacking under Federal Acquisition Regulation Part 16 Indefinite Delivery, Indefinite Quantity task or delivery order awards. To fix this, it is time that federal agencies be required to provide post-award debriefings to all unsuccessful offerors, regardless of the value of the awarded IDIQ task or delivery order.

Keep reading this article at: https://washingtontechnology.com/articles/2019/01/02/insights-bunting-contract-transparency.aspx

If you’re not early, you’re late: Meeting deadlines in federal procurements

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Businesses hoping to win a government contract must be familiar and comply with a host of complex timeliness rules, from the deadlines for submitting proposals and revisions, to the rules for protesting a potentially improper award to a competitor.

One small slip-up may be the difference between receiving a contract and not receiving it.

Untimeliness is a theme that frequently appears in the Government Accountability Office (GAO) protests we highlight on this blog: late proposals, tardy requests for a debriefing, untimely protests.

Some deadlines are obvious: If the solicitation says proposals are due at 5:00 p.m., don’t submit your proposal at 5:30 p.m. Others are less intuitive: When is the last possible moment you can request a required debriefing?  A few are positively convoluted.

We provide a few practical tips on timeliness below, illustrated with some cautionary protest decisions. As always, if you are not absolutely sure about any deadline, ask your procurement attorney.

Keep reading this article at: http://www.mondaq.com/article.asp?articleid=742438

It’s 4:30 pm — Do you know where your debrief request is?

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For those of you who have ever protested a solicitation before the Government Accountability Office (GAO), you know about GAO’s strict rules regarding timeliness.

Under GAO rules, a document is considered filed on a particular day if it is received in GAO’s new electronic filing system by 5:30 p.m. ET.  This rule is strictly enforced, as shown by the recent dismissal of a protest in CWIS, Inc., B-416544.  In that case, GAO dismissed a protest filed by 5:46 p.m, as untimely, even though the late filing resulted from an issue with GAO’s new electronic filing system.

What you may not know, however, is that similar strict timeliness rules also apply to requesting a required debriefing.

In the recent Exceptional Software Strategies, Inc. decision, GAO held that close of business for government agencies was 4:30 p.m., based on the time set forth in FAR 33.101, which governs agency protests.  GAO accordingly ruled that a debriefing request received after 4:30 p.m. was untimely. Because GAO found that the debriefing request was untimely, the protest itself was untimely.

Keep reading this article at: https://www.hklaw.com/GovConBlog/Its-430-pm-Do-You-Know-Where-Your-Debrief-Request-Is-07-27-2018/

“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

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