Oyster

I don't totally follow the question. FAR 8.4 doesn't use the term "technical factors," but it expressly allows agencies to consider "experience," which is what the agency did in Phase 1. Further, it appears that the agency clearly set out the ground rules in the terms of the RFQ. The agency stated that this was a two-phased evaluation with a mandatory down-select. The agency stated that Phase 1 would solely focus on experience, which would result in one of three adjectival ratings. It appears that the agency used the term "technically unacceptable" to mean that the offeror didn't have the level/quality of experience to move forward to Phase 2. I don't see a meaningful protest ground here just because the protester nitpicks the semantics. The time to have raised this protest was prior to the date set for the receipt of quotes. Raising this argument now would likely result in a dismissal on timeliness grounds at the GAO. I don't understand the importance of Central Care decision to your hypothetical. I get that they are both 8.4 competitions using a two-phase mandatory down-select. Unlike your hypo, however, the Central Care case used two non-price evaluation factors in Phase 1 -- a "staffing plan/approach" and "corporate experience evaluation factors." The protester contested the agencies evaluation and lost. So how is that similar to your hypothetical? How does that decision support your point? To recap, I don't see the agency error here, and to the extent that any FSS holder had an issue with the terms of the RFQ, the time to have raised that was prior to the date set for the receipt of quotes.

Private companies are presumed to act in their best interests and focus on generating a profit and typically must report to shareholders and the BOD. The Federal Government does not have the same natural predator to sloth, corruption, and errors. Here's a partial list of the reasons that are often cited for having a protest system: (1) The protest system promotes private sector confidence in the procurement system, thereby increasing competition. (2) The protest system increases the public’s confidence in the integrity of the procurement system. (3) The protest system protects contracting officers from internal agency pressures to act improperly. (4) The protest system provides for transparency and protects the integrity of the U.S. federal acquisition system. (5) The protest system provides offerors who dedicate substantial resources to participate in a federal contract competition with an effective, relatively low cost and expeditious way to challenge violations of procurement statutes, regulations, and/or the terms of a solicitation. (6) History has shown that only a fraction of a percent of federal procurements are protested, and therefore the oversight/transparency benefits outweigh the direct costs arising from actual protests. (7) It serves as a model for developing nations to emulate, thereby promoting the US interests abroad in terms of anti-corruption efforts.

It was Section 804 of the House version of the FY 24 NDAA, but was not adopted in the Senate version, and was dropped. See: FY2024 NDAA: Department of Defense Acquisition Policy (congress.gov) See the House provision here: BILLS-118hr2670rh.pdf (congress.gov) I don’t think it was an effective way to curb protests anyway, so I think it was wise that they dropped it. It would have been cumbersome to implement, and I highly doubt it would have moved the needle at all in terms of filing bid protests for several reasons. First, as you mentioned, it was limited to large DOD contractors (with revenues above $250M). I don’t believe that the threat of potentially having to reimburse the agency for their costs would be a significant deterrent to large companies in most cases. Outside counsel from the large law firms representing these companies have partner fees at or exceeding $1K/hour. A GS-15 agency counsel, by contrast, is likely around $100/hour, depending on how you divide their salary into hours. I don’t see this as a meaningful deterrent, particularly when discussing high-dollar contracts. Second, I think this would be a mess to implement. Most agency attorneys are not trained (or required) to account for every increment of time allocated to a particular case/issue. It is one of the main benefits of being a government attorney. If this was passed, the odd result would be that agency counsel would be penalized by having to account for every increment of time they spend on bid protests. It’s not clear how they would calculate these costs. Further, would that time tracking apply to attorneys only? Contracting officers too? Requiring activity personnel? Anyone who spent any time at all on it? What about the costs of pulling all of this information together? Where would the funds go? ... absent specific statutory language, it would just go to the Treasury under the Miscellaneous Receipts Statute (31 USC 3302), and the agency would never be able to use a dime of it. Third, what if it was denied by the GAO and then re-filed in the COFC where the COFC sustains the protest ... perhaps on new evidence the Government was forced to divulge in its agency record that wasn't disclosed at the GAO? Would they still have to pay because they lost at GAO first? That sounds unfair. Fourth, what is the protester's recourse if the agency is unreasonable in the final bill (or it is based on errors)? I could see that spurring additional litigation and just more costs and time wasted by the agency. Finally, defense agencies prefer GAO protests over the more time-intensive and costly COFC protests. The pilot program only applies to GAO protests, so why would DOD want to encourage protesters to file at the COFC instead of GAO? (I recognize they are not exclusive forums.) I think it’s a knee-jerk reaction that only makes sense on the surface. Ultimately, I think it's just a bad idea.

The Army JAG School Deskbooks can be found here: Deskbooks & Handbooks - The Judge Advocate General's Legal Center & School - TJAGLCS (army.mil)

Ok, so it said "Subpart 8.4," when it should have said "Subpart 16.5," correct? Further, despite this language, the agency used FAR Part 15 procedures. I think we need to understand the "so what?" a little more. That is, what is the basis of the protest? Is it related to the conduct of discussions/exchanges? In other words, what unfairness sprang from the agency's actions here? There has to be some sort of competitive prejudice. Not all procurement errors are prejudicial.

Mike, Instead of asking for the "rationale" for the guidance, why not just ask for a copy of it? Asking for a "rationale" is going to make someone have to critically think and then draft a response, which you will likely never get. My guess is that the "guidance" doesn't really exist, but I reserve judgment. Sounds like laziness, not policy.

One additional point on protest costs. It would be helpful to know how much NIH ultimately paid out to protesters under the two CIO-SP4 protest decisions that were sustained in FY23: Systems Plus and Phoenix Data. Phoenix Data involved 27 protesters (not represented by counsel) and 28 B-numbers, whereas Systems Plus involved 64 protesters (represented by counsel) and 98 B-numbers. Both decisions "recommended" that NIH pay reasonable costs including attorneys' fees. I'd be curious to know if a FOIA requestor could get at least the total bill that was paid (with taxpayer dollars) in those two sustained protests (of the same procurement). I note that a lot of the protesters in System Plus were represented by some of the largest law firms out there. It would be helpful to know how much of the protest costs were actually borne by the Government, and how much was not reimbursed. The data from that one case could be illuminating.

Vern, that sounds like a fascinating paper, regardless of the inevitable pushback against it. I've noticed that even a sensible tweak to the protest system, such as eliminating the "two bites at the apple" protests, meets furious resistance from the private sector (and private GovCon attorneys). Since a private sector company is always on the receiving end of a serial protest, you would think that the private sector would be more moderate in its stance in that regard. I believe the private sector GovCon attorneys (who have a vested interest in the status quo) lead the charge against any change to the system. It is interesting to note that our protest system shields certain actions from protests, but not others. The main example of course being task/delivery orders that fall under the FASA thresholds of $10M/$25M. It seems sort of odd to say that a $24M task order off a DOD IDIQ contract can be shielded from protests (except scope/period/max value), but a $2K procurement off a federal supply schedule can be protested at GAO or the COFC (or both, if the protester starts at GAO and then later files again at the COFC). In other words, we *have* done what you are proposing to do on a smaller scale in the IDIQ context. Has that resulted in some sort of crisis/lack of competition in the IDIQ realm? No. I think that fact strengthens your point. I'm not sure if I would peg the average cost of a protest to GAO's inflated B-numbers. Frankly, I wish their annual report to Congress was more transparent for the uninitiated. Only those who understand their B-Number methodology know that their annual report is inflated. For example, I can only find 289 published protest decisions from GAO for FY23. I can find about 100 COFC protest decisions for that same FY, and 3 from the CAFC. That said, I think it is an excellent (and timely) topic, and I really look forward to reading it.

Thanks dsmith101abn. I stand corrected. Thank you for that information. I know see that sam.gov's website explains that it extends to federal agencies too.

Niles -- Good question. I think you need to be a little more specific though. Are you talking about Federal Agency A entering into an Economy Act agreement with Federal Agency B? ... Or, are you talking about some sort of FAR-based contract between a federal agency and municipality? Federal agencies don't register in Sam.gov, but a municipality would need to be registered as a precondition to entering into a contract with a federal agency. Again, this gets very fact-specific very fast, so if you can provide some more detail, that would help the community answer your question.

Good point, Jamaal. Also, see Philips Healthcare Informatics, B-405382.2, May 14, 2012, 2012 CPD ¶ 220. It is mentioned in Footnote 1 of this article that appears to be on point to what you are seeking: Protesting with Less Than a Full Deck at GAO | Blank Rome LLP Quote from article: "A disappointed bidder not persuaded by the debriefing to abandon its effort to win the award understands that only after an agency produces its agency report does the protester have visibility into the raw data prepared and relied upon in the source selection process. Indeed, documents in the agency report sometimes conflict with information provided to the protester in the debriefing. Moreover, those documents frequently reveal strong supplemental protest grounds that could not have been known to the protester at the time of the initial protest.1" Footnote 1: One illustrative example is Philips Healthcare Informatics, B-405382.2, May 14, 2012, 2012 CPD ¶ 220. In Philips, the Agency Report filed in response to the initial protest revealed that the agency did not receive the awardee’s final proposal revision until after the solicitation’s established deadline for submission. GAO sustained the protest on this ground. However, this clearly fatal flaw in the procurement was not mentioned in the unsuccessful offeror’s debriefing letter and, had the unsuccessful offeror not filed a protest, the error would never have been revealed and the improperly-awarded contract would have stood.

Why not just file a supplemental protest based on the information received in the Agency Report? As part of that supplemental protest, you can point out the inconsistency between the rationale stated in the Agency Report compared to the debriefing. The same (short) timelines apply, so you need to act fast. From GAO's Descriptive Guide: "Practice tip: Supplemental/Amended Protests Protesters should keep in mind that each new ground of protest must independently satisfy GAO’s timeliness requirements. For example, if GAO grants an extension of time for filing comments on an agency report, the comment extension does not extend the 10-day time frame for filing a timely supplemental/amended protest. As a result, if a protester waits until the extended due date for filing comments to raise new or amended protest grounds, those grounds may be dismissed as untimely if they were raised more than 10 days after the protester learned or should have learned of them. Additionally, in the event a supplemental/amended protest is filed, GAO may provide a shortened time for production of the agency report and submission of comments regarding the supplemental/amended protest."

I agree with formerfed, who has provided an excellent analysis. That said, I'm having a little difficulty following your fact pattern. Is your commercial customer a "[prime] contractor placing an order under your company's Federal Supply Schedule?" If so, it appears to me that they would have needed to receive a "written authorization" to do that under FAR 51.102, which I assume they did. FAR 51.103 requires that such business-to-business orders include the following statement: "In the event of any inconsistency between the terms and conditions of this order and those of your Federal Supply Schedule contract, the latter will govern." Did your commercial contract include that statement? Here's the full text of 51.103: 51.103 Ordering from Government supply sources. (a) Contractors placing orders under Federal Supply Schedules shall follow the terms of the applicable schedule and authorization and include with each order- (1) A copy of the authorization (unless a copy was previously furnished to the Federal Supply Schedule contractor); and (2) The following statement: This order is placed under written authorization from ______ dated ______. In the event of any inconsistency between the terms and conditions of this order and those of your Federal Supply Schedule contract, the latter will govern. (b) Contractors placing orders for Government stock shall- (1) Comply with the requirements of the contracting officer’s authorization, using FEDSTRIP or MILSTRIP procedures, as appropriate; (2) Use only the Government activity address code obtained by the contracting officer in accordance with 51.102(e) along with the contractor’s assigned access code, when ordering from GSA Customer Supply Centers. (3) Order only those items required in the performance of their contracts.

C Culham makes a good point. We can't answer this question definitively because we don't know what the solicitation actually said. If it stated that FAR Part 15 procedures would be used, that could alter the analysis. FAR 13.106-2(b)(1) states: "The contracting officer has broad discretion in fashioning suitable evaluation procedures. The procedures prescribed in parts 14 and 15 are not mandatory. At the contracting officer’s discretion, one or more, but not necessarily all, of the evaluation procedures in part 14 or 15 may be used." Unless CHILNVILN says that the solicitation said FAR Part 15 procedures would be used, I will assume it did not. If it did not, then the contracting officer is correct, and the final answer is that FAR 15.506 does not "apply" to this FAR Part 13 procurement.

Footnote 6 of a recent GAO protest decision is instructive. See DKMT Consulting, LLC, B-421223, January 12, 2023: The protester also asserts that the agency failed to provide it a debriefing. The award of a contract under FAR part 13 does not require a debriefing, but may require a brief explanation of the basis for the agency's award decision. To that end, FAR section 13.106-3(d) provides, "[i]f a supplier requests information on an award that was based on factors other than price alone, a brief explanation of the basis for the contract award decision shall be provided (see [FAR] 15.503(b)(2))." Although the agency did not provide DKMT with a brief explanation, an objection to a brief explanation, or the lack thereof, does not form a basis of protest.