GAO Bid Protests: Required Debriefings

Jay Blindauer

A contractor will often incur a significant cost (in time and money) to prepare and submit a proposal for a possible Government contract.   If the contractor does not obtain an award, it is reasonable and appropriate to want to know why.   That is where the debriefing process comes in.   It gives the contractor the means to get some answers.  

However, key point, not all debriefings have the same legal significance.   The type of debriefing that a contractor should want is called a “required debriefing.”^[1]   This is because a required debriefing gives the contractor two things.   First, it is required, meaning by law the Government has to give it.   Second, if the contractor wants to file a GAO protest and challenge the award, a required debriefing potentially adds time to file the protest and still trigger the statutory requirement for the Government to prevent or halt performance of the newly awarded contract/order.^[2]   Forcing the Government to prevent or halt performance is crucial to ensure that, during a protest, meaningful relief remains available.   Indeed, a GAO protest is generally not helpful if the contested contract/order is already substantially performed before a protest decision is reached.   And, in any event, who wants a competitor wearing down the Government’s welcome mat by performing while a protest is ongoing?   Hence, securing a required debriefing is advantageous.

What it takes to get a required debriefing is prescribed by the Competition in Contracting Act of 1984 (“CICA”).   Specifically, CICA provides that where an excluded/disappointed offeror makes a written request for a debriefing within three calendar days following notice of exclusion/non-award, that offeror is entitled to a required debriefing.^[3]   Hence, the general notion is that the contractor sends a debriefing request email to the Contracting Officer within three days of finding out, as applicable, that the contractor is no longer in the competition, or that the contract/order was awarded to someone else.

When does the Contractor Receive Notice?

Since a disappointed offeror only has three days to timely make a written request for a required debriefing, it is important to know when the three-day period begins to run.   Generally, the clock starts ticking on the day that the disappointed offeror receives the notice that it is excluded from the competition, or that award was made to someone else.   That means the clock starts the moment the notice email hits the contractor’s inbox, regardless of whether the email is opened.^[4]

However, there is an exception for when the Contracting Office sends the notice after hours or on a weekend/holiday.  

Where a notice “enters an offeror’s computer system after close of business on a weekday or on a weekend or holiday and is not opened before the following business day, [GAO] think[s] that for purposes of FAR [ ]15.505(a)(1), receipt of the notice should be considered to have occurred on that business day.   To construe receipt of an e-mail notification as occurring when the notification enters the offeror’s computer system, even when the entry occurs outside of normal business hours, would lead to a reduction of the 3-day period for requesting a debriefing granted by the FAR to a single day when the notification is transmitted after close of business on Friday or on Saturday of a weekend followed by a Monday holiday.”^[5]

Hence, GAO defined “receipt of the notice” under FAR 15.505(a)(1) as not occurring where the notice is received after hours, or on a weekend or holiday, if the recipient does not actually open the message.^[6]   And because FAR 15.505(a)(1) implements 10 U.S.C. § 2305(b)(6)(A) and 41 U.S.C. § 3705(a), GAO’s decision impliedly interprets the statutory language of CICA.   Of course, factually establishing when an email is actually opened requires substantiation (e.g., through a contractor’s sworn statement, or a copy of a read receipt if the Contracting Office requested a read receipt while emailing the notice).   Nonetheless, if a Contracting Office sends a notice email before midnight on a Friday before a long weekend, a disappointed offeror has a way to preserve a full three days for considering and making a written debrief request.    

Who Gets the Debriefing Request?

10 U.S.C. § 2305(b)(5)(A), 41 U.S.C. § 3704(a), and FAR 15.506(a)(1) state that a debriefing request must be “received by the agency[.]”^[7]   Meanwhile, FAR 15.505(a)(1) states that the debriefing request goes “to the contracting officer[.]”^[8]   Regardless, common sense dictates that the Contracting Office is the correct recipient of a debriefing request, and particularly the relevant Contracting Officer and/or Contract Specialist.   A disappointed offeror who sends the request elsewhere in the agency risks the request not being legally effective because it fails to provide adequate notice to the cognizant officials.^[9]   Also, emphasis on the word received, as in the debriefing request must be received by the Contracting Office within three days.   There is no mailbox rule whereby the request is timely if it is merely postmarked within three days.

Watching the Clock

FAR 33.101 states that “Filed means the complete receipt of any document by an agency before its close of business.   Documents received after close of business are considered filed as of the next day.   Unless otherwise stated, the agency close of business is presumed to be 4:30 p.m., local time.”   FAR 33.101.   Accordingly, if a Contracting Office does not receive a debriefing request before its close of business (which, unless the office has a different policy, is presumed to be 4:30 p.m. local time), the debriefing request will likely be considered filed on the next day.^[10]   Thus, when a written debriefing request is being made on the third day, it is prudent to send it before 4:30 p.m. for the time zone where the Contracting Office is located.

Weekend & Holiday Tolling

Regarding the definition of day for the three-day request period, FAR 15.501 states “Day, as used in this subpart, has the meaning set forth at [FAR] 33.101.”^[11]   In turn, FAR 33.101 states the following.

Hence, if the third day for timely making a required debriefing request falls on a weekend day or Government holiday, the debriefing request may still be timely if made before close of business on the next day that the Contracting Office is open.^[13]  

However, to be clear, the predicate for this being the case is that the procurement must rely upon the debriefing provisions of FAR Subpart 15.5—such as the solicitation stating that it is employing FAR Part 15 source selection procedures, or referencing the debriefing requirements at FAR 15.505 or 15.506.  

Therefore, for the type of procurements where a required debriefing is available, weekend and holiday tolling^[14] of the three-day debriefing request period is probably also available, but a watchful eye is nonetheless warranted to ensure that FAR Subpart 15.5 debriefing rules are in play.

It is also worth mentioning that, when making a debrief request, a disappointed offeror should not be vague, but plainly request a debrief.^[15]  

Not For All Procurements

Just as important as knowing how to get a required debriefing is discerning what is not a required debriefing.

Particularly, a required debriefing is not available in all procurements.   Rather, CICA provides that a required debriefing is only available where competition/award is “on the basis of competitive proposals[.]”^[16]   “The term ‘competitive proposals’ is not defined by Bid Protest Regulations, nor is it expressly defined by statute or regulation.”^[17]   Despite that the term is not statutorily defined, it means just as it reads—a competition in which the competitors are required to submit proposals, not a sealed bidding.^[18]   Further, looking at 41 U.S.C. § 3703, 10 U.S.C. § 2305(b), and FAR 6.401(b), it is apparent that the term implies competitive negotiation source selection procedures, as typified by FAR Part 15 but not necessarily limited to FAR Part 15.^[19]  

Attributes of a competitive negotiation include:

• A competitor actually being an offeror and making an offer in the form of a proposal (a quote is not an offer);^[20]
• The possibility of a competitive range and/or discussions (negotiations) with offerors,^[21] and
• An award determination that considers price and non-price factors, and does not solely consider price or price-related factors.^{[22], [23]}  

Since a competition must be on the basis of competitive proposals for a required debriefing to be available, and a competition must use FAR Part 15 or FAR Part 15-like procedures to be on the basis of competitive proposals, a required debriefing is generally available for these types of procurements.

• A FAR Part 15 competition, including a competition to create one or multiple IDIQ contracts
• A FAR Subpart 16.5 competition under a multiple award IDIQ contract vehicle for an order that exceeds $6 million^{[24], [25]}
• A FAR Part 12 competition for commercials items/services that uses FAR Part 15 or FAR Part 15-like procedures^[26]
• An A-76 public-private competition that uses FAR Part 15-like procedures^[27]

Conversely, a required debriefing is generally not available for these types of procurements.

• A FAR Part 14 sealed bidding^[28]
• A competition for an architect/engineer contract pursuant to the Brooks Act^[29]
• A competition for an R&D contract under a Broad Agency Announcement (“BAA”), such as a Small Business Innovation Research (“SBIR”) competition.^[30]
• A FAR Subpart 8.4 competition for a blanket purchase agreement or order under the Federal Supply Schedule^[31]
• A competition that uses FAR Part 13 simplified acquisition procedures^[32]

It is also worth noting that if a procuring agency is not subject to the required debriefing provisions of the U.S. Code at Title 41 or Title 10, a required debriefing is not possible.   See, e.g., Centerra Integrated Facilities Servs., LLC, B-418628, 2020 CPD ¶ 155, at 4-5 (Apr. 23, 2020) (there could be no required debriefing following a Bonneville Power Administration procurement because that agency is not subject to 41 U.S.C. § 3704).

The Competitive Negotiation in a Trojan Horse

The 2020 U.S. Court of Federal Claims (“CoFC”) decision in Tolliver Group, Inc. v. United States shows that the above-stated categories are not absolute in determining whether a disappointed offerer is entitled to a required debriefing.   That case involved a challenge to an Army decision to cancel a solicitation, but ended up addressing whether the cancelled Army solicitation established a competition on the basis of competitive proposals.^[33]   Specifically, even though the Army issued the solicitation under the Federal Supply Schedule in accordance with FAR Part 8, the solicitation referenced FAR Part 15 and followed FAR Part 15-like procedures.^[34]   Consequently, Judge Solomson found that the solicitation-contemplated procurement was, in fact, on the basis of competitive proposals.^[35]   The decision makes clear that a procuring agency’s use of procedures other than competitive proposals (FAR Part 8, FAR Part 13, etc.) cannot merely be a superficial distinction.   And if a solicitation really is just a Trojan Horse, the inner workings of which is actually a competitive negotiation source selection, a disappointed offeror may still be entitled to a required debriefing.

DFARS Post-Award Debriefing

On May 20, 2021, DoD issued proposed rules for implementing its enhanced post-award debriefing process in the Defense Federal Acquisition Regulations Supplement (“DFARS”).^{[36], [37]}   Those proposed rules, if finalized, will obligate a DoD Contracting Officer to provide a timely requested post-award debriefing for all contract/order awards valued at $10 million or more.^[38]   This is based on Sub-section (a) of Section 818 of the National Defense Authorization Act (“NDAA”) for Fiscal Year (“FY”) 2018. ^[39]   Sub-section (a) states that “the Secretary of Defense shall revise the Department of Defense Supplement to the Federal Acquisition Regulation to require that all required post-award debriefings, . . . , include, at a minimum, the following: . . . A requirement for a written or oral debriefing for all contract awards and task or delivery orders valued at $10,000,000 or higher.”^[40]   Notably, the part of Section 818 that gives an offeror the opportunity to submit required debriefing follow-up questions is in Sub-section (b), not Sub-section (a).^[41]   Further, Section 818 did nothing to change the CICA prescription that a required debriefing is available where competition/award is “on the basis of competitive proposals[.]”^[42]  

Despite the foregoing, DoD’s May 20, 2021 proposed rules state that “[i]mplementation of section 818 affords offerors the opportunity for enhanced postaward debriefings for contracts and task or delivery orders that exceed $10 million.   Implementation provides offerors the opportunity, upon receiving a postaward debriefing, to submit follow-up questions related to the debriefing and to receive agency responses.”^[43]   Therefore, DoD seems to be misinterpreting Section 818, Sub-section (a), as limiting the application of Sub-section (b).  

If this is true, DoD is likely incorrect.   If anything, Section 818, Sub-section (a), gives an offeror a right to a debriefing for a contract/order that exceeds $10 million, even if competition/award was not on the basis of competitive proposals.   And where a contract/order is on the basis of competitive proposals, even if its does not exceed $10 million, a disappointed offeror is still entitled to a required debriefing, including the right to submit follow-on questions guaranteed by Section 818, Sub-section (b).

Therefore, a post-award debriefing mandated by DoD’s contemplated changes to the DFARS should not be conflated with a required debriefing.          

The Sua Sponte Debriefing

Another issue to be aware of is sometimes the Government provides a debriefing without being asked, and sometimes before the contractor has the opportunity to request it, such as part of a notice of exclusion/non-award.   This is called a sua sponte debriefing.^[44]   It does not count as a required debriefing because it is not the result of a timely written request from the disappointed offeror.^[45]   However, if the Government provides a sua sponte debriefing, it does not obviate a disappointed offeror’s right to a required debriefing.   Therefore, it is entirely appropriate for a disappointed offeror to, within three days of notice of exclusion/non-award, request additional debriefing, and consequently secure a required debriefing on top of the sua sponte debriefing.   In such a circumstance, GAO has made clear that the protester can wait until the required debriefing is provided to file a protest.^[46]   The sua sponte debriefing does not impose on the contractor a requirement to file a protest prematurely.

The Pre-Award to Post-Award Debriefing Conversion

Since a required debriefing can occur both pre-award (following notice of exclusion), or post-award (following notice of award to another offeror), it is possible for a disappointed offeror to request a pre-award debriefing, but not receive the debriefing until after award.   When this occurs, the circumstances matter as to why the pre-award debriefing was deferred.   Specifically, if the Government chooses to defer the debriefing—such as the Contracting Officer sending an email stating, “I am too busy now.   I’ll debrief you during the post-award debriefings”—then the debriefing is still considered a required debriefing.^[47]   In turn, it still pushes back the deadlines for filing a GAO protest and obtaining a performance freeze of the newly awarded contract/order.   However, if the debriefing is deferred due to the disappointed offeror—such as the disappointed offeror asking the Contracting Officer to hold off on the debriefing—then the post-award debriefing that the contractor eventually obtains is no longer a required debriefing.   This is because CICA makes clear that a timely requested pre-award debriefing converted to a post-award debriefing only remains required if the offeror “was refused a pre-award debriefing[.]”^[48]   It is a pitfall that occasionally undermines a contractor’s ability to bring a GAO protest.  

Requesting a Redacted Copy of the Source Selection Decision Document

This note is not about the content of a required debriefing.   Content is addressed by regulations such as FAR 15.506(d).   However, one point is worth raising, because it is introduced by Section 818 of the NDAA for FY 2018, and DoD’s May 20, 2021 proposed rules.   Specifically, DoD proposes a rule for a contract/order over $10 million but not exceeding $100 million.   In that circumstance, a small business or DFARS 201.101-defined nontraditional defense contractor^[49] may obtain, as part of a debriefing, a redacted copy of the source selection decision.^[50]   However, here’s the hitch, the small business or nontraditional defense contractor must request the document.^[51]   Consequently, if the contractor does not ask it could constitute a failure to diligently pursue a basis of protest.^[52]   In turn, any subsequently raised protest ground regarding a potential error in the source selection decision document would potentially be at risk of being found untimely.^[53]

When is the Debriefing Date Offered?

As discussed, a required debriefing is helpful to timely triggering the statutory requirement for the Government to prevent or halt performance of the newly awarded contract/order (called the “CICA stay”).   However, to obtain the CICA stay, the contractor must still timely file a GAO protest.   

Important to keep in mind, a GAO protest has two different timeliness tests.   There is the test for the overall timeliness of a protest ground, provided a 4 C.F.R. § 21.2.^[54]   And there is the test for being timely to obtain the CICA stay, provided immediately below.   Consequently, a filed protest can be timely overall and still not be timely for obtaining the CICA stay.   In which case, the protest goes forward but the awardee may, at the Government’s discretion, perform the contested contract/order while the protest is ongoing.

The important deadline for getting the CICA stay is stated at 31 U.S.C. § 3553(d)(4)(A).    

Particularly, the GAO protest must be filed no later than:

“the date that is 10 days after the date of the contract award; or [ ] the date that is 5 days after the debriefing date offered to an unsuccessful offeror for any debriefing that is requested and, when requested, is required[,]” whichever is later.^[55]  

The key part of the rule to focus on is no later than five days after the “debriefing date offered[.]”^[56]   Therefore, to effectively apply the rule, a contractor needs to know when is the required debriefing date offered.

NIKA Technologies, Inc. v. United States

The February 4, 2021 decision of the U.S. Court of Appeals for the Federal Circuit (“CAFC”) in NIKA Technologies, Inc. v. United States authoritatively resolved what is the required “debriefing date offered[.]”^[57]   The overturned CoFC decision for the case, penned by Judge Lettow, stated the often held belief that the required “debriefing date offered” refers to the entire debriefing period until conclusion, not just a single day.^[58]

“The government’s focus on the singular nature of ‘date’ is also unconvincing.   The government suggests the debriefing date must refer to only one date because the statute [31 U.S.C. § 3553(d)(4)(A)(ii)] uses the singular form, and therefore, ‘[t]he debriefing date is the date when the debriefing occurs[.]’ . . . This limited reading, however, is not supported by the precedents cited by the government in its own brief, i.e., cases that specifically dealt with scenarios in which the debriefing lasted more than one day. . . . These cases confirm that ‘the debriefing date’ in the statute, while singular, refers to the date at the end of a potentially multi-day debriefing process.   [ ]   Therefore, NIKA’s assertion that its debriefing process lasted three days (March 4-6, 2020), including the two-business day opportunity to submit questions, neither runs counter to the statutory language nor common debriefing practice.   It follows that ‘the debriefing date’ here, under the statute, is March 6, 2020—the last day of NIKA’s debriefing process.”^[59]

CAFC’s February 4, 2021 decision went in the opposite direction.   Specifically, CAFC stated the following.

“The plain meaning of § 3553(d)(4)(A)(ii) is that the clock starts on the day that the bidder receives debriefing.   The statute refers to ‘the debriefing date,’ using the singular form of the noun.   § 3553(d)(4)(A)(ii) (emphasis added).   If Congress thought otherwise, it could have said ‘the end of the debriefing period,’ but instead it said ‘the debriefing date.’ ”^[60]

Even though the case is ostensibly about the two-day period to pose questions under DoD’s enhanced debriefing process, CAFC’s plain meaning interpretation of 31 U.S.C. § 3553(d)(4)(A)(ii) applies generally—not just to DoD.   This raises the question as to how CAFC’s decision squares with previous GAO decisions that treat a required debriefing as potentially a multi-day process, and have to resolve when a required debriefing ends.^[61]   CAFC’s decision arguably is not at odds with those previous GAO decisions.   This is because those GAO decisions address the duration of a required debriefing for overall protest timeliness at 4 C.F.R. § 21.2(a)(2), not for CICA stay timeliness at 31 U.S.C. § 3553(d)(4)(A)(ii).   Now, post-NIKA Technologies, Inc., there is clear departure over tolling between GAO’s regulation at 4 C.F.R. § 21.2(a)(2), and CICA at 31 U.S.C. § 3553.   Accordingly, required debriefing timeliness may still be tolling for the purpose of 4 C.F.R. § 21.2(a)(2), but not for 31 U.S.C. § 3553(d)(4)(A)(ii).

Based upon the foregoing, the safe approach is to assume that, for a non-DoD procurement, there is no CICA stay timeliness tolling after an initial required debriefing is received.   And for a DoD procurement where an enhanced debriefing applies, there is no further tolling after DoD answers the first round of timely submitted questions.

Examples

In light of the preceding, the following scenarios depict how the five-day filing period is triggered.   These scenarios assume that the underlying procurement is a type where a required debriefing is available.

• For a non-DoD procurement, after the contractor timely requests a debriefing, and the Government provides a written/telephonic/in-person debriefing, the contractor should file a GAO protest no later than five days from receipt of the initial debriefing.   It does not matter if the Government holds the debriefing period open.   The Government keeping the debriefing period open likely will not provide any tolling for obtaining the CICA stay.

• For a DoD procurement, after the contractor timely requests a debriefing following a notice of exclusion from the competitive range, the contractor should file a GAO protest no later than five days from receipt of the initial debriefing.   DoD’s enhanced debriefing process is only available for a post-award debriefing.

• For a DoD procurement, the contractor timely requests a post-award debriefing, the Government provides a written/telephonic/in-person debriefing, and the contractor poses no follow-up questions.   This was the fact pattern for NIKA Technologies, Inc., and unless the contractor timely poses follow-up questions within the two-day period, there is no tolling of timeliness for the CICA stay.^[62]   Consequently, the contractor should file a GAO protest no later than five days from receipt of the initial debriefing.

• For a DoD procurement, the contractor timely requests a post-award debriefing, the Government provides a written/telephonic/in-person debriefing, and the contractor timely poses follow-up questions within two days.   The five-day period does not begin to run until DoD answers the questions.   This is because Section 818 of the NDAA for FY 2018 modified CICA to state that “[f]or procurements conducted by any component of the Department of Defense, the 5-day period . . . does not commence until the day the Government delivers to a disappointed offeror the written responses to any questions submitted[.]”^[63]

• DoD awards a $9.99 million contract, the contractor timely requests a post-award debriefing, the Government provides a written/telephonic/in-person debriefing, and the contractor timely poses follow-up questions within two days.   However, based upon DFARS changes contemplated by DoD’s May 20, 2021 proposed rules, the Contracting Officer refuses to answer the timely submitted questions.   The five-day period probably starts running when the Contracting Officer refuses to answer the questions because a refusal to answer the questions is, in a manner, a response to the questions.

Best Practices

In sum, to obtain and maximize the benefit of a required debriefing, the following practices are helpful.

• Upon notice of exclusion or non-award, request a debriefing as soon as is practicable, and no later than 4:30 p.m. on the third day after the day of the notice.
• If the notice was received outside of normal business hours, document when the notice was opened.
• Request a debriefing even if the Contracting Office provided a sua sponte debriefing with the notice.
• If it is unclear whether a required debriefing is available, request a debriefing anyway.
• Ensure the debriefing request is in writing.
• Send the request to the Contracting Officer.
• In the request, use the word debriefing.
• If it is a DoD procurement, request a redacted copy of the source selection decision.
• Generally, do not request that a debriefing be delayed, and specifically do not request a pre-award debriefing be delayed until after award.
• Generally, assume the five-day clock to file a GAO protest and get the CICA stay will start upon receipt of an initial debriefing (be it written, telephonic, or in-person).
• For a DoD post-award debriefing, submit written follow-up questions within two days following the initial debriefing.

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[1] See, e.g., Gorod Shtor, B-411284, 2015 CPD ¶ 162, at 2 (May 22, 2015) (“Gorod Shtor asserts that its protest is timely because its protest was filed within 10 days of receiving its debriefing.   We find that the exception to our timeliness rules is not applicable here because the procurement was not one which involved a required debriefing.” (emphasis added)).

[2] See 31 U.S.C. § 3553(d).

[3] See 10 U.S.C. § 2305(b)(5)(A) and 6(A); 41 U.S.C. §§ 3704(a) and 3705(a); FAR 15.505(a)(1) (“The offeror may request a preaward debriefing by submitting a written request for debriefing to the contracting officer within 3 days after receipt of the notice of exclusion from the competition.”); FAR 15.506(a)(1) (“An offeror, upon its written request received by the agency within 3 days after the date on which that offeror has received notification of contract award in accordance with [FAR] 15.503(b), shall be debriefed and furnished the basis for the selection decision and contract award.”).

[4] See Golight Inc., B-401866, 2009 CPD ¶ 184, at 1 (Sept. 10, 2009) (“For the purposes of our timeliness rules, however, the mechanical receipt of the email during the firm’s regular business hours on August 21 constituted notice of the agency’s award.”).

[5] Int’l Resources Grp., B-286663, 2001 CPD ¶ 35, at 3 (Jan. 31, 2001).

[6] See id.

[7] 10 U.S.C. § 2305(b)(5)(A); 41 U.S.C. § 3704(a); FAR 15.506(a)(1).

[8] FAR 15.505(a)(1).

[9] Cf. Campbell v. Schmidt, 2020 WL 6445874, at 6 (D.D.C. 2020) (quoting Estate of Clarke v. Comm’r, 54 T.C. 1149, 1169 (1970)) (“[T]he U.S. Government is not a monolith, and notice to one agency of the Government . . . is not notice to another government agency.”).

[10] See Exceptional Software Strategies, Inc., 2018 CPD ¶ 237, at 4 (“Here, nothing in the solicitation, or elsewhere in the record, designates the business hours for NSA; as such, in our view, the 4:30 p.m. deadline applies.   Accordingly, ESS’s 4:59 p.m. debriefing request is considered filed on the next business day, Tuesday, March 20.  Because March 20 is more than 3 days after ESS was notified of its exclusion from the competitive range, the debriefing request was not timely made.”).

[11] FAR 15.501.

[12] FAR 33.101.

[13] See Exceptional Software Strategies, Inc., 2018 CPD ¶ 237, at 6 n.4; Raith Eng’g and Mfg. Co., W.L.L., B-298333.3, 2007 CPD ¶ 9, at 3 n.1 (Jan. 9, 2007)

[14] Tolling means that the running of a legally provided time period is paused or halted.

[15] See, e.g., Minotaur Eng’g, B-276843, 97-1 CPD ¶ 194, at 3 (May 22, 1997) (GAO did not regard a request for an “abstract of offers” as a debrief request).

[16] 10 U.S.C. § 2305(b)(5)(A) and (6)(A); 41 U.S.C. §§ 3704(a) and 3705(a); FAR 15.505(a)(1); FAR 15.506(a)(1); 4 C.F.R. § 21.2(a)(2).

[17] McKissack–URS Partners, JV, B-406489.2 et al., 2012 CPD ¶ 162, at 3 (May 22, 2012).

[18] Contrast 41 U.S.C. § 3702 with id. at § 3703; id. at § 3306(b); FAR 6.102(a)-(b).

[19] See FAR 6.401(b) (“Competitive proposals.   (See [FAR] part 15 for procedures.)”); but see Tolliver Group, Inc. v. United States, 151 Fed. Cl. 70, 90 (2020) (“[A]lthough the government relies on FAR 6.102, as explained above, to argue that ‘competitive proposals’ are synonymous with FAR Part 15 procurements, that thread quickly unravels as the Court follows it through.”).

[20] See id. at 91.

[21] See 41 U.S.C. § 3703, 10 U.S.C. § 2305(b), and FAR 6.401(b).

[22] See Comfort Inn South, B-270819 et al., 96-1 CPD ¶ 225, at 2 (Mar. 14, 1996) (“We find that the record here supports the agency’s determination to use negotiated procedures rather than sealed bidding on the ground that the award will not be based on price alone.”); FAR 6.401.

[23] However, I note that Section 876 of the National Defense Authorization Act (“NDAA”) for Fiscal Year (“FY”) 2019, codified at 41 U.S.C. § 3306(c), took away the requirement for considering price in a competition for a multiple award indefinite delivery, indefinite quantity (“IDIQ”) contract vehicle if orders under the contract vehicle will be for services on an hourly rate basis.   Therefore, the general rule that competition “on the basis of competitive proposals” must have price competition is not absolute.

[24] See Professional Analysis, Inc., B-410202, 2014 CPD ¶ 247, at 2 (Aug. 25, 2014) (“The policies underlying this rule are equally applicable to statutorily required debriefings related to the placement of task and delivery orders.”); Navarro Research and Eng’g, Inc., 94 Fed. Cl. 224, 231 (2010); 10 U.S.C. § 2304c(d)(5); 41 U.S.C. § 4106(d)(5); FAR 16.505(b)(1)(iv)(E) and (b)(6).

[25] I find some ambiguity as to whether a required debriefing is possible in a FAR Subpart 16.5 competition for an order that is $6 million or less.   For example, FAR 16.505(b)(1)(iii)(B)(2) states, regarding an order that exceeds the simplified acquisition threshold, that a Contracting Officer shall “[a]fford all contractors responding to the notice a fair opportunity to submit an offer and have that offer fairly considered.”  FAR 16.505(b)(1)(iii)(B)(2).   It uses the term offer, not bid or quote.  See FAR 2.101 (definition of offer).   Nonetheless, unless a bid protest alleges an out-of-scope modification, GAO does not have jurisdiction for the protest of a FAR Subpart 16.5 order that is less than $10 million (for civilian agencies), or less than $25 million (for non-civilian agencies).  Consequently, the issue is academic.

[26] See General Revenue Corp., B-414220.2 et al., 2017 CPD ¶ 106, at 7 (Mar. 27, 2017) (“According to the intervenors and the agency, the timeliness exception for requested and required debriefings set forth in our Bid Protest Regulations, 4 C.F.R. § 21.2(a)(2), is inapplicable in this FAR Part 12 procurement.   We disagree.”).

[27] See Rhonda Podojil-Agency Tender Official, B-311310, 2008 CPD ¶ 94, at 1 (May 9, 2008).

[28] See Fumigadora Popular, S.A., B-276676, 97-1 CPD ¶ 151, at 1 (Apr. 27, 1997).

[29] See Global Aerospace Corp., B-414514, 2017 CPD ¶ 198, at 6 (July 3, 2017).

[30] See id.; Equitus Corp., B-419701, 2021 CPD ¶ 201, at 2 (May 12, 2001).

[31] See Global Aerospace Corp., 2017 CPD ¶ 198, at 6; The MIL Corp., B-297508 et al., 2006 CPD ¶ 34, at 1 (Jan. 26, 2006).

[32] See Triple Point Security, Inc.-Recon., B-419375.2, 2021 WL 534600, at 3 (Feb. 11, 2021) (“Our decisions explain that an agency does not provide a required debriefing when using simplified acquisition procedures; rather, the agency provides a brief explanation of award in response to a request information under FAR section 13.106-3(d).”).

[33] See Tolliver Group, Inc., 151 Fed. Cl. at 89-92.

[34] See id.

[35] Id. at 91 (“In this case, in contrast, the agency did not merely solicit quotes resulting in a purchase order to the putative awardees.   Rather, the agency solicited competitive proposals pursuant to RFPs, contemplated negotiations, and awarded contracts based upon those proposals.”).

[36] See Defense Federal Acquisition Regulation Supplement: Postaward Debriefings (DFARS Case 2018-D009) (Proposed Rule), 86 Fed. Reg. 27,354-58 (May 20, 2021).

[37] Based upon Section 818 of the National Defense Authorization Act (“NDAA”) for Fiscal Year (“FY”) 2018, and Defense Acquisition Regulation System (“DARS”) Memorandum No. 2018-O0011 (Class Deviation—Enhanced Postaward Debriefing Rights), DoD entities, generally speaking, guarantee more information in their post-award debriefings than other procuring agencies.   See Pub. L. No. 115-91, Title VIII, Subtitle B, § 818, 131 Stat. 1283, 1463 (Dec. 12, 2017) (codified at 10 U.S.C. § 2305 Note and amending 10 U.S.C. § 2305(b)(5)(B)-(E) and 31 U.S.C. § 3553(d)(4)(B)).   DoD calls it the enhanced debriefing process, and it obligates DoD to answer timely submitted questions that an offeror poses following receipt of an initial, required post-award debriefing, and extends some post-award debriefing rights to successful offerors.   The DoD enhanced debriefing process only applies post-award, not for a pre-award exclusion from the competition. 

[38] See 86 Fed. Reg. at 27,355.

[39] Pub. L. No. 115-91, Title VIII, Subtitle B, § 818(a).

[40] Id.

[41] See id. at § 818(b).

[42] 10 U.S.C. § 2305(b)(5)(A) and (6)(A); 41 U.S.C. §§ 3704(a) and 3705(a); FAR 15.505(a)(1); FAR 15.506(a)(1); 4 C.F.R. § 21.2(a)(2).   On this point, although Section 818 added to the statute at 10 U.S.C. § 2305 Note, and made key changes at 10 U.S.C. § 2305(b)(5)(B)-(E) and 31 U.S.C. § 3553(d)(4)(B), it did not alter the material provisions at 10 U.S.C. § 2305(b)(5)(A) and (6)(A), and 31 U.S.C. § 3553(d)(4)(A)(ii).

[43] See 86 Fed. Reg. at 27,356.

[44] Latin for “of one’s own accord”     

[45] See Exceptional Software Strategies, Inc., B-416232, 2018 CPD ¶ 237, at 3 (July 12, 2018).

[46] See The Boeing Co., B-311344 et al., 2008 CPD ¶ 114, at 19 and 46 n.41 (June 18, 2008).

[47] See 41 U.S.C. § 3705(c) (“The contracting officer is required to debrief an excluded offeror in accordance with section 3704 of this title only if that offeror requested and was refused a pre-award debriefing under subsections (a) and (b).”); 10 U.S.C. § 2305(b)(6)(B) (“The contracting officer is required to debrief an excluded offeror in accordance with paragraph (5) only if that offeror requested and was refused a preaward debriefing under subparagraph (A).”).

[48] See id.; United Int’l Investigative Servs., Inc., B-286327, 2000 CPD ¶ 173, at 2 (Oct. 25, 2000); VMD Sys. Integrators, Inc., B-412729, 2016 CPD ¶ 88, at 2-3 (Mar. 14, 2016); Loc Performance Products, Inc., B-417431, 2019 CPD ¶ 149, at 2 (Apr. 22, 2019).

[49] See Defense Acquisition Regulation Supplement: Postaward Debriefings (DFARS Case 2018-D009) (Proposed Rule), 86 Fed. Reg. 27,354, 27,358 (May 20, 2021) (“Nontraditional defense contractor means an entity that is not currently performing and has not performed any contract or subcontract that is subject to full coverage under the cost accounting standards prescribed pursuant to 41 U.S.C. [§] 1502[,] and the regulations implementing such section, for at least the 1-year period preceding the solicitation of sources by DoD for the procurement (10 U.S.C. [§] 2302(9)).”).

[50] See id. at 27,355.

[51] See id.

[52] See, e.g., Automated Med. Products Corp., B-275835, 97-1 CPD ¶ 52, at 2-3 (Feb. 3, 1997) (protest was not timely for a failure to diligently pursue information where the protester eschewed a debriefing in favor of less expeditious means of obtaining the information).

[53] See id.

[54] “[GAO] Protests . . . shall be filed not later than 10 days after the basis of protest is known or should have been known (whichever is earlier), with the exception of protests challenging a procurement conducted on the basis of competitive proposals under which a debriefing is requested and, when requested, is required.   In such cases, with respect to any protest basis which is known or should have been known either before or as a result of the debriefing, and which does not involve an alleged solicitation impropriety covered by paragraph (a)(1) of this section, the initial protest shall not be filed before the debriefing date offered to the protester, but shall be filed not later than 10 days after the date on which the debriefing is held.”  4 C.F.R. 21.2(a)(2).

[55] 31 U.S.C. § 3553(d)(4)(A).

[56] Id.

[57] Id.

[58] See NIKA Tech., Inc. v. United States, 147 Fed. Cl. 690, 694-95 (2020), rev’d, 987 F.3d 1025, 1027-29 (Fed. Cir. 2021).

[59] See id. at 695 (internal citations omitted).

[60] NIKA Tech., Inc. v. United States, 987 F.3d 1025, 1028-29 (Fed. Cir. 2021).

[61] See, e.g., New SI, LLC, B-295209 et al., 2005 CPD ¶ 71, at 2 (Nov. 22, 2004); Zafer Constr. Co., B-295903 et al., 2005 CPD ¶ 87, at 5 (May 9, 2005); Harris IT Servs. Corp., B-406067, 2012 CPD ¶ 57, at 4 (Jan. 27, 2012); State Women Corp., B-416510, 2018 CPD ¶ 240, at 3 (July 12, 2018); Exceptional Software Strategies, Inc., B-416232, 2018 CPD ¶ 237, at 4-5 (July 12, 2018).

[62] See 10 U.S.C. § 2305(b)(5)(B)(vii).

[63] 31 U.S.C. § 3553(d)(4)(B).