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Oyster

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  1. 10 hours ago, govt2310 said:

    The way I see it, the agency in this hypothetical didn't put any "technical" factors in Phase 1, so how can the agency find any proposal "technically unacceptable"?  How is "Experience" a technical factor?  And how is "Experience" something that could be deemed "technically unacceptable" if the solicitation's worst adjectival rating category for Experience is "Low Confidence"?  Low Confidence is not No Confidence, see?

    This hypothetical is very similar to Central Care, Inc., B-420959.13 et al. (Jan. 11, 2024).  GAO denied the protest, finding that it was ok for the agency to eliminate the "Low Confidence" protester after Phase 1.

    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.  


     

  2. 23 minutes ago, Fara Fasat said:

    I am badly citing something I've read/heard before, but it says basically -- if you want to eliminate something, first you have to answer why it exists. In this case, why are bid protests allowed? They have no equivalent in the commercial world, so how do companies survive without it? As I have said in many classes - you lick your wounds, learn from your loss, and move on to the next opportunity.

    Before even addressing the costs, the delays, etc, you must address why protests exist, and then explain why the harm from removing protests won't outweigh the interests that are being protected. In other discussions on this forum, some have stated that government money is taxpayer money, and that COs have a sacred duty to use that money fairly. Is that the reason?  Is that a better reason than the fiduciary duty a corporation has to its shareholders? Are there reasons other than making sure that taxpayer money is fairly handed out?

    I realize I'm just throwing out some thoughts, not solutions. But you're the deep researcher, not me. 😀

     

    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.   

  3. 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.  

  4. 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.  

  5. 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 DataPhoenix 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.

  6. 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.   

  7. 55 minutes ago, dsmith101abn said:

     

    I'm told by my finance/fiscal office there's not a mechanism to pay other federal/state/county/city organizations if there is no SAM registration. System limitation. Whether that applies to other executive agencies I do not know. Whether that is a requirement of any regulation i do not know that ether. 

    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.  

  8. 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. 

  9. 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.

  10.  

    1 hour ago, ax12901 said:

    I think this is unfair as a protestor does not have the same opportunity/process to challenge new arguments after the Agency report, as it did when it originally filed its protest in response to the debriefing.

     

    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."

  11. 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.

  12. 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.  

  13. 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. 

  14. Great comments by all.  Thank you. 

    This is a timely discussion in light of the fact that GAO just released its FY23 bid protest report to Congress: B-158766, GAO Bid Protest Annual Report to Congress for Fiscal Year 2023.

    Controlling for the number of CIO-SP4 protests filed, the total number of protests filed appears to be only a small uptick over last year.  (I recognize that the GAO doesn't give us the full picture because it obviously doesn't cover the protest filed at the COFC.)  

    Returning to the MITRE protest tool, it seems like the underlying problem is as follows:  The three "main" pillars of the laws governing federal government contract formation are (1) statutory authorities, (2) regulatory authorities, and (3) decisional authorities.  Of those three, contracting professionals have easy access to the first two, but the third (decisional authorities) is murkier ... it consists of thousands of decisions across many years, with new ones churned out every day, the decisions are tied to specific facts, they are published by three separate forums, the COFC cases tend to be much lengthier and more difficult to digest quickly, agencies aren't giving most contracting officers/specialists access to Lexis or Westlaw, brown-bag lunch training sessions aren't sufficient, etc.  In other words, the first two (statutes and regs) are neatly tucked into a box, while the third is like a hoarder's attic, which is understandably confusing to many in the acquisition workforce.  

    Meanwhile, the GAO "effectiveness rate" keeps going up indicating that agencies are either losing protests (or taking corrective action) more frequently.  

    The protest tool seems to me to be a commonsense way get our collective hands around this aspect of the problem. 

     

  15. I agree with you Voyager.

    When I was in the federal government, I was involved with a lot of protests over my long career.

    After the protest was complete, we were required to send up a lengthy (and time consuming) report setting out the protest information in painful detail and explaining the “lessons learned” from the protest in a lengthy narrative.

    Do you want to know how much guidance I saw being returned to the field from the policy office that required it?  Nada!  Zippo!  Nothing!

    This program is doing something that the Government (writ large) should have been doing for years ... analyzing the protest issues, explaining them in plain English, providing one-click access to the actual cases that are being cited, and providing a way to input general information about real life contracts in order to allow the user to focus on the critical protest pitfalls to avoid.  

  16. Thanks, formerfed.  Good comments.  You raise an important question regarding which entity should ultimately be responsible for this capability.  Perhaps OFPP is the best fit, or perhaps OFPP could determine that it should be housed elsewhere within the federal government. 

    Since contracting professionals need to understand bid protest case law, yet agencies (to my knowledge) are not providing them with (expensive) subscriptions to Lexis and/or Westlaw, the need for this capability is rather obvious and long overdue. 

    Some may argue that knowledge of bid protest case law is just the agency legal counsel’s job, but in my experience agency legal counsel with procurement experience are few and far between.  As such, they can’t possibly review every instance where knowledge of bid protest case law is required. 

    I note that FAR 1.102(d) indicates that the “acquisition team” must be knowledgeable about (inter alia) bid protest case law … so they can exercise initiative and use sound business judgment without inadvertently falling into a protest pitfall.  

  17. I'm an independent consultant in private industry.

    Has anyone used the “Contract Protest Diagnostic Tool” website developed by MITRE (in partnership with the Office of the Director of National Intelligence)? 

    (It's not a subscription service ... its 100% free.)

    Has it helped with any contract formation issues? 

    I know it's just a prototype, but I’m curious to know general impressions.  

    Here's the link:  https://aida.mitre.org/protest-tool/

    Or try: Contract Protest Diagnostic Tool (mitre.org)

     

  18. The case cited by C Culham answers your question. 

    So, no, the five-year limitation on the base-plus-options from FAR 17.204(e) does not include the “option to extend services” (52.217-8) as stated in FAR 17.208(f). 

    That said, it must be priced and evaluated as part of the original award in order to be later exercised.  As GAO has explained in U.S. Information Technologies Corporation, B-419265, November 17, 2020:

    "Where an agency does not evaluate an option to extend services under FAR clause 52.217-8 as part of the award, the agency cannot later exercise such an option because it would represent, in effect, a new procurement that must satisfy the requirements for full and open competition under FAR part 6. Major Contracting Servs., Inc., B-401472, Sept. 14, 2009, 2009 Comp. Gen. Proc. Dec. P176 at 6."

    As a historical note, a 2016 GAO study explained, “The clause and associated provisions were established in 1989 so as to provide a way for the government to continue to receive services on recurring requirements when the award of subsequent contracts might be delayed, such as when there is a bid protest.”  (GAO-16-262R Army’s Use of Contract Extensions.)

     

  19. I understand your frustration.  

    I don't understand the agency position as you've described it.  Those points do not seem connected to an allegation that the agency evaluators applied unstated evaluation criteria. 

    A good (and relatively recent) GAO decision is FreeAlliance.com, LLC, B-419201.3 et al., January 19, 2021.  It sustained a protest of a FAR Subpart 8.4 procurement for applying unstated evaluation criteria.  Perhaps you've already read it, but it's the most recent sustained GAO decision on unstated evaluation criteria for an 8.4 procurement that I'm tracking. 

    Good luck. 

  20. I agree with Joe Bernier.  Using oral presentations as part of your evaluation process may be helpful.  You could raise this issue with each offeror (typically their key personnel) and explain the problem you are having and ask them how they will avoid it happening with the personnel they assign to your contract.  The evaluation team would need to judge who is persuasive and who is just regurgitating talking points. 

    Ji20874 also makes a good point about more thorough (and meaningful) past performance evaluations that aren't just a paper drill.  

  21. Typically, the reason that the request for a "brief explanation" becomes important is due to GAO's timeliness rules.  If an FSS vendor fails to request one, then there is no argument that GAO's timeliness rules should be extended beyond the 10 days following the date that the vendor was informed of their non-selection.  If, however, the disappointed vendor first learns of its ground(s) for protest from the brief explanation, then the 10-day window may start on the date of the brief explanation.  That is, unlike procurements conducted under other parts of the FAR, there are no "required" post-award debriefings under FAR Subpart 8.4 ... only a "brief explanation" and only if the disappointed vendor asks for one.  Accordingly, the timeliness rules for the protest (and the CICA stay) are generally shorter under FAR Subpart 8.4 procurements as compared with FAR Part 15 for example.  

    Although a "brief explanation" is not a debriefing, and there are no regulatory requirements regarding what an agency must put in a brief explanation, I would still request one if I were a disappointed vendor.  It takes one simple emailed request, and the FAR requires the contracting officer to provide one if requested -- notice the word "shall" in that FAR provision.  You are not asking for a "debriefing," rather you are asking for a "brief explanation."  By not requesting one, you lose potential protest grounds, and you also lose the argument that the protest filing date should be extended based on the brief explanation.  In other words, there's no downside to requesting one.  

    See Castro & Company LLC, B-412398, January 29, 2016, Ampcus, Inc., B-415780, March 16, 2018, ITility, L.L.C., B-515274.3, April 2, 2018 and IR Technologies, B-414430 et al., June 6, 2017.

  22. GAO's descriptive guide explains, "Once the protest is received, the agency and/or an intervenor may request that GAO summarily dismiss the protest or some of its grounds. 4 C.F.R. § 21.3(b). Where summary dismissal may be appropriate, the request for dismissal should be filed as soon as practicable after the protest is filed. Id. Unless it is clear that dismissal is appropriate, GAO generally will permit the protester to file a response to the dismissal request. GAO will promptly address the dismissal request. If necessary, GAO will suspend the agency report while it considers the dismissal request. If GAO grants the request, either in whole or in part, GAO will not require the agency to prepare a report in response to the protest or in response to those grounds of protest that were dismissed."

     

    I'm not aware of a GAO decision that specifically addresses your "non-substantive-error-in-the-protest-itself" issue, but it appears that you are afforded the opportunity to file a response.  If there are no decisions on point, it seems that you would just respond directly to the agency's assertions in line with the argument you set forth earlier. 

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