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Birute10

FAR Part 8 & Debriefings

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In a May 2014 posting, a poster stated that "GAO has ruled that if you introduce FAR 15 procedures to a Part 8 acquistion, then GAO will hold you to those more stringent part 15 procedures in the event of a protest. Thus, you would have to follow the procedures in FAR 15.506 for post award debriefings." There was no citation to any decision, and I have been unable to find any GAO decision reflecting such a ruling. Can anyone provide a cite?

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No one can provide a GAO case relating to the need for debriefings under FAR Part 8. GAO won't consider protests relating to demands for debriefings or the adequacy of a debriefing, because those matters are not within its jurisdiction. See Southwind Construction Services, LLC, GAO Dec. B-410333.2. January 21; 2015, 2015 CPD ¶ 64; Footnote 5.

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No one can provide a GAO case relating to the need for debriefings under FAR Part 8. GAO won't consider protests relating to demands for debriefings or the adequacy of a debriefing, because those matters are not within its jurisdiction. See Southwind Construction Services, LLC, GAO Dec. B-410333.2. January 21; 2015, 2015 CPD ¶ 64; Footnote 5.

Just to clarify - this wasn't a FAR Part 8 acquisition. It was a 2 phase design-build type acquisition for the establishment of a Single Award Task Order Contract (SATOC), using a seed task order. Footnote 5 says:

Southwinds protest also alleges several improprieties relating to the agencys initial award of the contract to Red Cedar. Protest at 4-6. Our Office determined that these arguments failed to state a valid basis, and they were dismissed. 4 C.F.R. § 21.5(f) (2014). Furthermore, Southwinds protest challenges procedural aspects of the agencys award to HGL, such as the agencys alleged failure to timely provide information and documents to the protester and the adequacy of the agencys debriefing. Our Office also dismissed these protest grounds, as our jurisdiction does not extend to administrative or procedural matters that do not affect the validity of the award. See e.g., Evans Sec. Solutions, Inc., B-311035, Mar. 19, 2008, 2008 CPD ¶ 58 at 3 n.3; The Ideal Solution, LLC, B-298300, July 10, 2006, 2006 CPD ¶ 101 at 3 n.2

I don't think that GAO was specifically referring to the failure to provide a debriefing here; it was referring to the adequacy of the agency's debriefing.

But in the Ideal Solution protest above,Note 2 said, in part,

"Whether or not an agency provides a debriefing or the adequacy of a defriefing are not issues that our Office will consider because the scheduling and conduct of a debriefing is a procedural matter that does not involve the validity of award."

Thus, Ideal Solution is the on-point citation.

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Joel:

What is your point? Are you saying that the GAO will entertain a protest about an agency's refusal to give a debriefing, or that it will entertain a protest about the adequacy of a debriefing? If so, you are wrong. GAO has no jurisdiction over such matters:

[O]ur jurisdiction does not extend to administrative or procedural matters that do not affect the validity of the award.

Do you not understand that? Do you think that the refusal to provide a debriefing or the adequacy of a debriefing affect the validity of an award? If you do, let me sort you out: They don't.

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Sorry, I was editing my post when you responded. My post was simply an attempt to clarify that the Southwind Construction Services, LLC, GAO Dec. B-410333.2. January 21; 2015, 2015 CPD was not a Part 8 acquisition and that the issue (one of the "grounds") there apparently concerned the adequacy of the debriefing, not the lack thereof. You are often quick to point out to others when a case is not on point and they have inferred something beyond the stated issue.

The Ideal Solution Protest did specifically discuss lack of a debriefing, however. That would have a better decision to cite. See: The Ideal Solution, LLC, B-298300, July 10, 2006, 2006 CPD ¶ 101 at 3 n.2

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Your "clarification" was just you being you.

I fully expect you to follow up with more "clarifying: posts, followed by elaborations and clarifications of your clarifications. In the end there will be 20 posts in this thread, most of them from you. Before long you'll be talking to yourself.

Give it a rest.

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In a May 2014 posting, a poster stated that "GAO has ruled that if you introduce FAR 15 procedures to a Part 8 acquistion, then GAO will hold you to those more stringent part 15 procedures in the event of a protest. Thus, you would have to follow the procedures in FAR 15.506 for post award debriefings." There was no citation to any decision, and I have been unable to find any GAO decision reflecting such a ruling. Can anyone provide a cite?

Here is the link to the "May 2014 posting": http://www.wifcon.com/discussion/index.php?/topic/2548-gsa-awards-notification-to-unsuccessful-offerors/#entry22019

ji20874 replied to that poster citing the Court of Federal Claims. While not specifically answering Birute 10's question concerning GAO protests that would supposedly require an agency to hold to more stringent requirements of Part 15 if it introduced Part 15 procedures, the Court of Federal Claims did address the issue:

Posted 05 May 2014 - 03:36 PM

Blitz,

This is an interesting topic. The Court of Federal Claims thinks otherwise, opining that an agency can use some FAR Part 15 procedures and not others in a FAR Subpart 8.4 acquisition. See USCOFC Bid Protest No. 12-274 C, Distributed Solutions, Inc.

As an initial matter, FAR 8.404 expressly provides that FAR Part 15 does not apply to orders placed against FSS contracts. FAR Part 15, therefore, is explicitly made inapplicable to FSS contracts. Plaintiff contends that because DOL engaged in discussions, it was required to follow FAR Part 15 procedures. This misconstrues case law. This court consistently has held that procurements conducted under Subpart 8.4 are different from those conducted under Part 15, even if some procedures also present in Part 15 are utilized. Therefore, that DOL conducted discussions did not mean it had to comply with the strict procedures of FAR Part 15. Where a solicitation governed by FAR Subpart 8.4 used procedures found in FAR Part 15, the procurement official need not comply with the more formal and rigorous procedures for negotiated procurements. While the agency can elect to use procedures from FAR Part 15, they are not presumptively applicable. This court has held that FSS acquisitions are not transformed into negotiated procurements simply because an agency chooses to utilize in its evaluation process more formal elements typlically used in a negotiated procurement. [internal quotation marks and case citations omitted]

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Even if GAO thought a FAR Part 8 procurement were transformed into a FAR Part 15 procurement through use of Part 15-like procedures, the GAO would not enforce the debriefing rules, because it has no jurisdiction to do so. THAT's the key factor in responding to Birute 10's OP.

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