If You’re Entitled to a Debriefing after Being Excluded from the Competitive Range, Don’t Delay
March 28, 2016
At first glance, the Government Accountability Office (GAO) rules concerning deadlines for filing bid protests may seem relatively straightforward. But looks can be deceiving. And, as a recent GAO opinion reminds us, following the timeliness rules requires careful attention to detail and a proactive approach to learning about – and acting to challenge -- the basis for the procuring agency’s actions. This is especially true if you have been excluded from the competitive range, a situation where waiting can essentially mean giving up your ability to protest.
The decision in VMD Systems Integrators, Inc. (VMD), B-412729 (March 14, 2016) involved a small business set-aside procurement for information technology, information management, communications, and multimedia services by the National Aeronautics and Space Administration (NASA). Some time after timely submitting its proposal, VMD Systems Integrators, Inc. (VMD) was informed by NASA that its proposal had not been included in the competitive range “[b]ecause of its low mission suitability score.” The notification letter informed VMD that requests for debriefings must be in accordance with FAR Parts 15.505 (Pre-award debriefing of offerors) and 15.506 (Post-award debriefing of offerors). Despite the fact that it was entitled to a pre-award debriefing under FAR 15.505, VMD elected to instead receive a post-award debriefing “in order to learn as much as possible from the debriefing process so that it might better improve its performance in future procurements.” While VMD’s stated motivation is laudable, its decision to wait for the more expansive debriefing available post-award turned out to be a major mistake.
Several days after NASA awarded the contract to another offeror, VMD received it post-award debriefing, which included debriefing slides, the source selection decision document (SSDD), and the source evaluation board’s findings with regard to its evaluation of VMD’s proposal. Significantly, the SSDD discussed strengths identified under the mission suitability factor in the proposals that were included in the competitive range. Based on this information, VMD protested, alleging among other things that the agency treated its proposal disparately from the proposals submitted by competitive-range offerors.
In response to the GAO’S request that it address the timeliness of the protest, NASA filed a request for dismissal arguing that the protest was untimely. As GAO noted, its bid protest rules provide that protests “other than those based on alleged solicitation improprieties, shall be filed no later than 10 days after the basis of the protest is known or should have been known, with the exception of protests challenging a procurement “under which a debriefing is requested and when requested, is required.” 4 C.F.R. § 21.2(a)(2). According to the agency, however, VMD’s decision to wait for a post-award debriefing rendered the exception based on receipt of a required debriefing inapplicable because the post-award debriefing VMD requested and received was not “required.” A contracting officer is only required to provide a post-award debriefing to an offeror excluded from the competitive range if that offeror requested but was refused a pre-award debriefing. FAR 15.505(a)(2).
VMD conceded that its debriefing was not required, but it argued that its protest grounds -- the alleged unequal treatment of proposals in the evaluation – were based on information VMD did not and could not have known until after it received the source selection decision document, which it would never have received in a pre-award protest. According to VMD, because the FAR prohibits disclosure of information about the evaluation of other offerors’ proposals in a pre-award debriefing, it could not, as a matter of law, have learned of any disparate treatment earlier, had it chosen to receive a pre-award debriefing.
GAO rejected this argument, finding that it “reflects a misunderstanding of [GAO] timeliness rules in this particular context.” As GAO explained, at the time of its exclusion from the competition, VMD could have requested a pre-award debriefing, from which it would have learned the results of the evaluation of its proposal and the basis for its exclusion from the competitive range. If that information had led VMD to believe that its exclusion was unreasonable, it could have protested its exclusion at that time – using that information. Instead, VMD chose to receive a post-award debriefing, which was effectively a choice not to protest its exclusion from the competitive range. But its exclusion from the competitive range meant that it was no longer an interested party for purposes of challenging the evaluation of other offers, or the award decision, even if it had received information at the post-award debriefing that it believed supported such a protest.
Simply put, VMD’s attempt to get more information available in a later debriefing robbed it of the ability to protest its exclusion from the competitive range. It may be that VMD would not have received sufficient information during a pre-award debriefing to support a viable protest of its exclusion from the competitive range. But at least it would have had a chance. This decision makes clear that would have been better to roll the dice on requesting a required pre-award debriefing than to wait and have zero chance to prevail.
© 2016 Jackson Kelly PLLC