There is a big difference in debriefing requirements in procurements conducted using Federal Acquisition Regulation (“FAR”) Subpart 8.4 (for Federal Supply Schedules) and procurements using FAR Part 15 (Contracting by Negotiation). Subpart 8.4 requires only “a brief explanation of the basis for the award decision” while FAR 15.506 requires a mandatory post-award debriefing with specific elements. This difference significantly impacts the GAO rules for timely protests, as one contractor found out. Ecology Mir Group, LLC, B-422881, Sept. 12, 2024.
Ecology submitted an offer pursuant to a procurement by the U.S. Navy for lodging and management services for a U.S. Navy ship. The Navy used the procedures in the General Services Administration’s eBuy system pursuant to FAR 8.4. The solicitation closed on August 8, 2024, and the Navy issued a purchase order to another vendor and notified the remaining vendors through the eBuy system that their quotations were unsuccessful.
On August 16, as required by FAR 8.405-2(d), the Navy provided Ecology with a brief explanation of the basis of award, and stated that “this is not a debrief.” It also stated that “Your quote was technically unacceptable.”
On August 19, Ecology requested that the Navy provide a “debrief” and information on why its quote was unacceptable. On August 20, 22 and 26, Ecology again requested information from the Navy on why its quote was unacceptable. On August 29, Ecology filed a protest at the GAO.
Despite Ecology’s requests for more details on why its quote was unacceptable, the GAO dismissed the protest as untimely. GAO’s rules state that a protest based on other than alleged improprieties in a solicitation must be filed no later than 10 days after the basis of protest is known or should have been known, with the exception of protests challenging a procurement conducted on the basis of competitive proposals under which a debriefing is request and when requested is required. 4 CFR § 21.2(a)(2). Here the Navy definitively notified Ecology on August 16th that it did not receive award because its quotation was technically unacceptable. Any protest challenging the agency’s evaluation was required to be filed at GAO by close of business, August 26th—but Ecology did not file the protest until August 29th. Therefore, the protest was untimely because it was not filed within 10 days as required by the GAO regulations. (Note: the outcome might have been different if this had been a FAR Part 15 Procurement, but it was not).
Takeaway: GAO’s protest rules contain strict requirements for the timely submission of protests, and GAO has only one exception (filed late for “good cause” that prevented a protester from filing timely), and that exception does not apply here.
For other helpful suggestions on government contracting, visit:
Richard D. Lieberman’s FAR Consulting & Training at https://www.richarddlieberman.com/, and Mistakes in Government Contracting at https://richarddlieberman.wixsite.com/mistakes
コメント