PilieroMazza attorneys are frequently contacted by government contractors soon after they learn that their proposal was not selected for award, with the contractor considering whether or not to file a bid protest. If the contractor wants to pursue its post-award protest before the Government Accountability Office (GAO), an important question that needs to be answered is whether a debriefing is required? Determining whether a debriefing is required is imperative to determining whether or not the contractor can rely upon the debriefing date to start the protest clock since under GAO rules, where a debriefing is required and timely requested, a contractor must file its protest no later than 10 days after the debriefing concludes (within five days of the debriefing to receive a stay).
The question of whether a debriefing is required becomes even more complicated when dealing with a FAR Part 12 acquisition for commercial items. Under strict FAR Part 12 procurements, offerors are not entitled to a debriefing. Rather, they are only entitled to a brief explanation of award, and only if requested. However, more commonly, FAR Part 12 procurements are using the policies unique to the acquisition of commercial items in conjunction with the policies and procedures for solicitation, evaluation, and award prescribed in FAR Part 15, Contracting by Negotiation. Procurements that combine these two types of acquisition procedures often create confusion for contractors, since debriefings are required under the policies and procedures of FAR Part 15.
Fortunately, in Gen Rev. Corp., B-4142202 et al., (Mar. 27, 2017), GAO helped clarify this confusion by focusing on the extent of the application of Part 15 policies and procedures in a FAR Part 12/FAR Part 15 procurement’s solicitation, evaluation, and award. Specifically, GAO identified that the solicitation was issued as a request for proposals, which is provided for under FAR Part 15, and the value of the procurement greatly exceeded the threshold of the simplified acquisition procedures set forth under FAR Part 13. See also The MIL Corp., B–297508 et al. (Jan. 26, 2006) (the use of negotiated procedures and the issuance of a request for proposals constitutes a procurement conducted on the basis of competitive proposals). Accordingly, because it was apparent that Part 15’s policies and procedures applied, GAO found that debriefings, which were requested within three days of the protesters having received notice of the awards, were required pursuant to the policies established by FAR Part 15, and thus the timeliness exception applied.
If you learned that your proposal was not selected for award, and the procurement contains both FAR Part 12 and FAR Part 15 policies and procedures, you will need to review the extent of FAR Part 15’s application to determine whether a debriefing is required. Please contact Lauren Brier, the author of this blog, or a member of PilieroMazza’s Bid Protest Team for assistance.
