BY BRENT CARPENTER
This article originally appeared in the March 28, 2016, edition of the Daily Journal of Commerce
If you’re a disappointed bidder on a federal government contract, you have three places you can go to protest the contracting agency’s award to another contractor: (1) the agency itself; (2) the United States Government Accountability Office (“GAO”); or (3) the United States Court of Federal Claims. In terms of impartiality and cost, the GAO lies somewhere between the agency and the Court of Federal Claims, with the agency being less expensive but less impartial, and the Court of Federal Claims being more expensive but more impartial. This article focuses on the initial steps you as a disappointed bidder or offeror need to take to preserve your right to protest before the GAO.
The first thing you need to do is request a debriefing from the government agency within three days of the notice of intent to award. It is within your rights to request an explanation for why the agency selected who they did. According to Federal Acquisition Regulation (“FAR”) 15.506(d), the agency should provide at minimum:
(1)The Government’s evaluation of the significant weaknesses or deficiencies in the offeror’s proposal, if applicable; (2) The overall evaluated cost or price (including unit prices), and technical rating, if applicable, of the successful offeror and the debriefed offeror, and past performance information on the debriefed offeror; (3) The overall ranking of all offerors, when any ranking was developed by the agency during the source selection; (4) A summary of the rationale for award; (5) For acquisitions of commercial items, the make and model of the item to be delivered by the successful offeror; and (6) Reasonable responses to relevant questions about whether source selection procedures contained in the solicitation, applicable regulations, and other applicable authorities were followed.
It is important to receive this information because it helps you discover whether there is a basis for a possible bid protest with the GAO.
You should request a debriefing even if you win the award. By hearing the agency’s rationale, you will gain insight into the agency’s selection process. So no matter what the result, seeing the notice of intent to award should cue you to act in arranging a debriefing with the agency.
Though the agency has the discretion to conduct their debriefing in any way they see fit, you should request an oral debriefing. The reason you want to avoid a written debriefing is because the agency will only provide the required minimum outlined in FAR 15.506(d). In written debriefing, they will likely proofread the document several times to make sure they are not revealing too much. Having the debriefing done orally allows you to gain additional information that naturally comes from a conversation.
If you do receive an oral debrief, do not have an attorney in the room with you. This is the only part of the process that I would recommend an attorney not be involved in. The reason for this is because the government agency will be additionally guarded in their speech with an attorney present. Instead, you should have a member of your staff present whose sole purpose is to take notes. Though recording equipment is not expressly forbidden by any written regulation, remember that the method of debriefing is at the discretion of the agency. You will be hard-pressed to find any agency that will allow recording equipment in the room.
The next step is to file a bid protest, if there are grounds for one. This needs to be done ten days after the basis of the protest should have been known. This does not necessarily mean ten days after the debriefing actually occurred. If you ask for a debriefing late (after three days) and are granted one, that does not mean that you receive an extension for your bid protest as well.
Though you are given ten days to file a bid protest for it to be considered, you should never take all ten days. The reason is that you need to file your protest with the agency within five days after you should have known the basis for a bid protest in order to obtain the automatic stay of contract award and/or performance. Also be mindful that it can take up to a day for the GAO to notify the agency, so in actuality you have four days to file. Being able to stay the award of the contract to a competitor is a huge advantage, so you should not let this opportunity pass by.
Protesting a bid before the GAO is a process rife with pitfalls for the unwary, and one which must be conducted in an expedited manner. Therefore, you must proceed both quickly and carefully in protesting to the GAO.