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No Debrief on a Two-Phase Source Selection?


76fj40

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We recently received word that we were not selected to move on to Phase 2 of a two-phase Department of Education solicitation. The letter notifying us of this fact gave some high-level reasons for us not being selected but did not appear to be accurate. When we requested a debrief, the CO responded "This solicitation was completed in accordance with EDAR 3415.302-70 Two-phase source selection, and is not held to the requirements of FAR Part 15 for Phase 1, to include debriefings." Is it true that a down select can be made without the requirement to provide debriefings to the unsuccessful offerors? Do we have any options here? Thanks in advance for your help.

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You asked for a debriefing, and the answer was no. Was your request for a debriefing in writing, submitted to the contracting officer within 3 days of your receipt of the notice of your exclusion from the competition?

A reading of FAR 15.505 and its paragraph ( a )( 1 ) might lead you to conclude that you are entitled to a debriefing because you are now excluded from the competition -- but that entitlement might not do you much good. Generally, the GAO will not consider assertions regarding the adequacy and conduct of a debriefing, since that is a procedural matter that does not involve the validity of an award. An unenforceable entitlement may not be an entitlement at all. Well, GAO says it will not rule on the adequacy of a debriefing -- but I'm not sure if it has had cases where debriefings were wholly refused. Your attorney can advise you on this matter.

If you want to file a protest, you need to hurry -- you only have ten calendar days from the date you learned of your exclusion from the competition. Maybe your attorney can help you find a reason for the protest, some error you can allege and its resulting prejudice (you said above the reasons for your non-selection "did not appear to be accurate") -- later, after the agency provides its evaluation and selection documents under protective order, your attorney might find a basis for a supplemental protest. Maybe the reason for your non-selection was the contracting officer's determination to limit the number of the selected offerors to the number of sources that is appropriate and in the best interests of the government?

One other thought -- you need to make sure the answer was a definitive "no" -- the agency is allowed to delay the debriefing until after award -- see FAR 15.505( b ). A "no" answer and a "wait until after award" answer are different.

I assume that sultaneous to checking here for general comments based on the community of practicioners, you are also seeking competent legal advice particular to your situation.

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...I assume that sultaneous to checking here for general comments... [emphasis added]

Alright, to lighten the atmosphere... :) I tried to look up the word "sultaneous" on-line. I think it might be a word in Hindi, but I am not sure what it means. Here is a link:

http://dict.hinkhoj.com/words/meaning-of-SULTANEOUS-in-hindi.html

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Thanks so much for the quick responses.

We submitted a debrief request via email the same day we received the notice of exclusion. From the notice of exclusion letter "This solicitation was completed in accordance with EDAR 3415.302-70 Two-phase source selection, and is not held to the requirements of FAR Part 15 for Phase 1, to include debriefings." I take this to mean no debrief, not a delayed debrief.

Phase 1 required a Business Proposal to include "estimated pricing for the Base and Option periods."

I contacted an attorney this afternoon.

Thanks again!

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You can read the EDAR citation here: http://farsite.hill.af.mil/VFEDARA.HTM

The only guidance for second phase selection is, "(3) Selection for participating in second phase. The contracting officer must select the offerors that are eligible to participate in the second phase of the process. The contracting officer must limit the number of the selected offerors to the number of sources that the contracting officer determines is appropriate and in the best interests of the Federal government."

It doesn't specifically waive the requirement for a debriefing as it doesn't mention debriefings at all. It does say that, "(1) The contracting officer must conduct the second phase of the source selection consistent with FAR 15.2 and 15.3, except as provided by 3405.207." It seems to imply that FAR 15.2/3 are waived for phase one, but it doesn't say it specifically.

Could be that DOE has consistently interpreted it to mean that part 15 doesn't apply to phase I. That's not how I'd intepret it from where I sit--please keep us updated if you decide to protest.

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KeithB18 - thanks for your help. I had previously reviewed the material you cited and also found it to be inconclusive. The lack of transparency here is very disappointing.

We contacted a firm to look into a protest but soon learned from a sub on a team that made the down select that the opportunity appears to be wired for the incumbent. I don't want to go into the reasons for this thinking here but we have abandoned the protest. Thanks again to everyone for your help.

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KeithB18 - thanks for your help. I had previously reviewed the material you cited and also found it to be inconclusive. The lack of transparency here is very disappointing.

We contacted a firm to look into a protest but soon learned from a sub on a team that made the down select that the opportunity appears to be wired for the incumbent. I don't want to go into the reasons for this thinking here but we have abandoned the protest. Thanks again to everyone for your help.

Interesting. Doesn't it make it right that the incumbent may win. Was it fairly won? Actually competitive? Was the price fair and reasonable? I don't have answers to thought but I would be interesting to see what GAO said about the Education Department's approach.

And I'd be interested because if GAO agreed with the Education Department, what would be stopping my civilian agency from writing an agency supplement that would seem to defy or distort the federal regulation? I don't even know if that's hyperbole.

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76fj40,

A protest is a discretionary action and a business decision -- as you are well aware -- it seems your firm has decided your best interests are served by not filing a protest -- that's an entirely reasonable decision. Best wishes!

KeithB18,

The question of the validity of the EDAR citation will have to wait for another day...

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