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Want advice. Kind of an emergency. I'm with government.

Agency issues RFP for a service. Says K to be awarded on LPTA basis. RFP says in order for a certain item of equipment to be acceptable it "shall" 1) meet spec and 2) particular item been prior preapproved by Agency. RFP requires proof of prior preapproval. Preapproval takes long time.

Agency gets three proposals. Two offerors unacceptable with several deficiencies but their equipment preapproved. One of them had lowest price. Third offeror considered acceptable but did not submit proof of prior preapproval. Agency sets competitive range. Eliminates both unacceptable offerors and notifies them more than 10 days ago. They don’t ask for debriefing. Conducts discussions with third offeror. KO asks offeror for the proof. Third offeror provides it confirming item acceptable.

During pre-award review, agency lawyer says KO should not have considered third offeror acceptable without proof, should have conducted discussions with all three offerors. Tells KO to reopen and do so. KO refuses. Says discussions need to be conducted only with most highly rated offerors. Says even unacceptable with the deficiency about proof, third offeror most highly rated (fewer deficiencies). No need to conduct discussions with other two unacceptable offerors. Wants to make award.

Other two bidders know all this (found out two days ago but can't say how). Can they win protest and get discussions and get another chance?

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Whether their protest would be timely or not is another issue. I would think that it is not timely. However, working on the assumption that it is deemed timely...

To me, the most important question will be, "How was the company that didn't offer a preapproved item considered the most highly rated over two companies that did offer preapproved items?". What were the evaluation factors? Answering those questions will give you an indication as to what their chances are.

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I'm with the KO on this. Establishing the competitive range is a discretionary action of the KO. I don't see how excluding offerors that, in the judgment of the KO, don't have a reasonable chance at award would be an abuse of that discretion.

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Guest Seeker

"How was the company that didn't offer a preapproved item considered the most highly rated over two companies that did offer preapproved items?".

The company did offer a preapproved item. It identified the item and that item was preapproved. The company just didn't submit the proof of preapproval with its proposal. KO agrees with lawyer that she shouldn't have rated the third proposal acceptable and that it was unacceptable. KO argues that she could put one unacceptable proposal in the range and leave the others out.

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It seems to me as if all three offerors could have a chance for award - especially if they could have corrected their deficiencies through discussions. Three proposals isn't an unwieldy number. While yes it's CO discretion, based on the info presented this CO would have included all three.

As for the question of whether or not they can win a protest, who knows? But it doesn't seem likely. Did you evaluate proposals consistent with the terms of your RFP? Did you document your rationale? As long as you did that, GAO typically doesn't overturn matters of CO discretion.

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When it comes to protests, one can never predict how the GAO's unwritten "save a buck" rule will factor into the decision.

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We don't know prices, and we don't know the magnitude of the "several deficiencies" -- we don't know enough to give definitive answers about whether there are gounds for protest or what the likely outcome will be.

However, in principle I agree with Don -- a compewtitive range decision is a discretionary action of a contracting officer, and as long as he or she has a rational basis for his or her decision, the assigned attorney shouldn't try to substitute his or her judgment for that of the contracting officer. That's one of the problems in federal procurements these days -- everyone wants to play contracting officer.

Now, as a practical matter, what happens? Does the contracting officer proceed with award even in the face of the attorney's advice? Or does the contracting officer accommodate the attorney's advice? Is the attorney merely an adviser to the contracting officer, or the real decision-maker?

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Guest Seeker

One of the two unacceptable offerors was very overpriced. That's the main reason it was not put in the range. The other was lower than the selected offeror but had very significant deficiencies that would have required a lot of revision to fix. The selected's deficiency was just informational.

In the agency where I work now the attorney truly is just an advisor. The KO will go her own way.

Thank all of you.

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I'm glad that the attorney is truly just an adviser to the contracting officer in your agency. I wish it were true everywhere.

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as a firm believer in the Protest as a tool to get relevant information that was not provided in a debriefing,

but should have been,

I am confident that a protest in this matter would be timely.

Heck, they just learned why they would want to protest 2 days ago.

One can argue that, by not requesting a debriefing, they might have learned this info at some earlier date, but didn't due to their failure.

But try to fix that date when they would have been debriefed, and then add 10 days.

GAO has said that not giving a debriefing is not protestable.

Try to show that they would have learned the reason for protesting in the debriefing. My anecdotal experience suggests that debriefings often skip over problematic areas that might spur protests. I've been told more than once by a CO that they are not allowed to give anything that is not listed in FAR 15.505(e) or FAR 15.506(d.)

However,

I don't see how this Protest would be sustained,

for the reason of CO discretion stated above.

The losing bidders don't have to agree with the reasoning;

the GAO just has to decide it was reasonable.

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Brian,

A protestor (or the protester's attorney) will get information in a protest that is expressly not allowed in a debriefing (for example, all of the information prohibited for a debriefing in FAR 15.506( e ) will be immediately provided in a protest), and I can understand why a protester would want that information -- for some reason, the FAR prohibits it in debriefings to unsuccessful offerors and yet unsuccessful offerors can get it in protests.

If you were giving advice to contracting officers on the subject of debriefings, what sort of information/documents would you want them to share in debriefings?

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Guest Vern Edwards

If you were giving advice to contracting officers on the subject of debriefings, what sort of information/documents would you want them to share in debriefings?

I'm not brian, but i'd like to answer that question.

I'd advise: Share everything in the files about the decision that the law allows the CO to disclose. Their attorney is going to get it if they protest, and I don't want them to protest just to get it because they think i'm hiding something. Show them that you have nothing to hide. If they think you erred, you should want them to tell you so that you can think it over and respond without the formality of a protest, if possible.

That ought to generate some controversy. A lot of people oppose full disclosure debriefings.

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Vern,

I agree wholeheartedly. When I do debriefings, I explain the limitations of FAR 15.506, but also sincerely let them know that I will share absolutely as much information as I can. I use similar reasoning to you: if they're going to discover it through a protest anyway, might as well tell them now, so long as it isn't specifically prohibited.

I've found this process beneficial because 1) the offerors are reassured that you're sincere and are not hiding anything, and 2) they can tell that you're prepared, knowledgeable, competent, and confident. This is usually enough to assuage any doubts they may have had about the integrity of the process.

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Source selection decision documents? Comparative analysis reports? Technical evaluation reports?

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ji20874,

Not sure exactly what you're asking or to whom it's directed, but what I usually do is provide all offerors their own rating charts at each step of the process (after initial evaluations and prior to requesting final proposal revisions). That way they can see how they've been rated along the way, where the movement was, and how to revise their proposal. It also gives them insight into how the Government is rating them in case they think we've missed something. (It's also a hedge against protest risk because we don't wait until the end of the process to give them a peek into our evaluations. This way the "known or should have been known" criteria in FAR 33.103(e) is met earlier).

Then, after conferring with Legal, during debriefings we provide them a redacted copy of the SSDD and a redacted copy of the Final Decision Briefing to the SSA. This way there are no surprises when we explain how we rated them because they've been told every step of the way and we've proven that we're transparent and our processes are above reproach.

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onliberty,

Thanks! To push a little more -- when you release the redacted SSDD, do you provide the same redacted SSDD to everyone, or do you do a redaction exercise for each unsuccessful offeror? Can unsuccessful offeror A see all of unsuccessful offeror B's and C's ratings, strengths, and weaknesses, along with the winner's?

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ji20874,

Everything is definitely tailored. GAO has held that the point of debriefings is to allow the unsuccessful offeror to improve their own product and have a better chance of award in the future. Therefore, the focus is only on their proposal and they get very little, if any, information about the other offerors, successful or not.

So we tailor the redactions of all the documents so that each offeror only sees their own information. They don't get any information about other losing offerors and the only information they get about the winning offeror is their name and overall total evaluated price - no other ratings, unit prices, strengths, weaknesses etc. If a tradeoff was considered we simply say *if* there were any differences (we typically don't confirm whether there was or not) it wasn't enough to overcome the best value gained by the winning proposal.

Obviously there are very few hard and fast rules and each agency/office may do things differently, but I've found this works well for what we do. But we always make sure we have heavy Legal buy-in regardless of our approach.

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Guest Vern Edwards

ji20874,

GAO has held that the point of debriefings is to allow the unsuccessful offeror to improve their own product and have a better chance of award in the future.

onliberty:

Please cite a decision in which the GAO made such a holding. And are you sure that you meant to say that the GAO has "held" in that way? That was a holding in a GAO decision? If they did say something like that in a decision, are you sure it wasn't in dicta?

In Forest Regeneration Services LLC, GAO Dec. B-290998, 2002 CPD ¶ 187, October 30, 2002, the GAO said:

The purpose of a debriefing is to furnish the basis for the selection decision and contract award. 10 U.S.C. § 2305( b )(5) (2000); OMV Med., Inc.; Saratoga Med. Ctr., Inc., B-281388 et al., Feb. 3, 1999, 99-1 CPD ¶ 53 at 9 n.3.

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Vern,

I'm not a lawyer so I cannot speak to "held" vs. "in dicta." However I can tell you that our Legal advisor explicitly used the word "held." My sentence below, "GAO has held that the point of debriefings is to allow the unsuccessful offeror to improve their own product and have a better chance of award in the future," was literally cut and pasted from email correspondence with JA.

The guidance came from AWD Tech., Inc., Comp. Gen. Dec. B-250081.2, 93-1 CPD (para) 83, at 6, n.2.: "The primary function of a debriefing is not to defend or justify selection decisions, but to provide unsuccessful offerors with information that would assist them in improving their future proposals."

Perhaps a more precise rendering of the statement above would be, "GAO has held that the point primary function of debriefings is to allow the unsuccessful offeror to improve their own product and have a better chance of award in the future."

Cheers.

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Guest Vern Edwards

Two statutes require debriefings in competitively negotiated procurements: 10 USC 2305( b ) and 41 USC 3704. Neither says anything about the purpose of a debriefing. They say only when debriefings are required and what information debriefings may and may not include. FAR says nothing about the purpose of a debriefing. The statement that the purpose of a debriefing is to help offerors improve future proposals has no basis in statute or in current regulation, and the GAO's statement is nothing but the GAO's own idea.

The notion that the purpose of a debriefing is to help offerors improve their proposals has its origin in a 1973 update to the Air Force supplement to the Armed Services Procurement Regulation. The update was made at 38 Fed. Reg. 15506, June 13, 1973, and it added 32 CFR § 1003.508, "Information to offerors," to read as follows;

Debriefings to provide information in addition to the preaward and postaward notices required by §13.508-2 and 3.508-3(a) of this title are encouraged, however, such debriefings shall not be conducted prior to contract award. Their primary objective is to assist offerors in upgrading the quality of their future proposals, thus providing benefits to both industry and the Air Force. Additionally, meaningful and factual debriefings should reduce protests against award. After a request for debriefing is received. the debriefing will be conducted as soon as practicable after contract award; if more than one request for debriefing is received, debriefings will be held sequentially.

(a) Debriefings requests in connection with the formal source selection procedures of AFR 70-15 shall be forwarded to the source selection authority (SSA) for appropriate action. Requests for debriefings shall be referred to the procuring contracting officer for procurements not employing the formai procedures of AFR 70-15.

( b ) Discussions will identify and explain those deficiencies of the offeror's proposal which were major factors for the offeror not being selected. Such deficiencies should be discussed only in relation to the requirements of the solicitation, avoiding any comparison with other offerors' proposals.

( c ) Deficiency reports will not be released for any purpose, either prior to, or after contract award, except as required for the purpose of conducting written or oral discussions pursuant to § 3.805-1 of this title and Paragraphs 14 (ch. 2) and 11 (ch. 3), AFM 70-10 (draft) , May 1971.

In 1980, the following was inserted in the Defense Acquisition Regulation (formerly the Armed Forces Procurement Regulation) at 3-508.4 by Defense Acquisition Circular 76-24, 45 Fed. Reg. 81402, December 10, 1980:

3-508.4 Debriefing of Unsuccessful Offerors.

(a) Offerors under negotiated procurements generally expend substantial time and effort in preparing their proposals. Therefore, those offerors not selected for contract award have a significant interest in learning why they were unsuccessful. Debriefing is the process by which purchasing offices provide unsuccessful offerors with the Government's evaluation of the significant factors contained in their proposals, citing determinative deficiencies and weaknesses. An adequate debriefing can provide the basis upon which offerors may improve future proposals and, in addition, give assurance that the selection has been handled fairly, in accordance with applicable regulations and the provisions of the solicitation.

When the FAR was promulgated on September 19, 1983, the rules about debriefings were placed in FAR 15.1002, 48 Fed. Reg. 42218-19, and did not include the business about helping offerors to improve their proposals. The FAR contained no statement of purpose and still does not. When the requirement to provide a debriefing was made statutory, the statute did not include any statement of purpose and still does not.

Black's Law Dictionary, 9th ed., defines holding as follows:

holding, n. (15c) 1. A court's determination of a matter of law pivotal to its decision; a principle drawn from such a decision. Cf. OBITER DICTUM. 2. A ruling on evidence or other questions presented at trial. 3.(usu. pl.) Legally owned property, esp. land or securities. 4. Hist. In feudal law, tenure.

It defines obiter dictum (in plural, obiter dicta or just dicta) as follows:

obiter dictum (ob-i-t<<schwa>>r dik-t<<schwa>>m). [Latin “something said in passing”] (18c) A judicial comment made while delivering a judicial opinion, but one that is unnecessary to the decision in the case and therefore not precedential (although it may be considered persuasive). — Often shortened to dictum or, less commonly, obiter. Pl. obiter dicta. See DICTUM. Cf. HOLDING (1)); RATIO DECIDENDI. “Strictly speaking an ‘obiter dictum’ is a remark made or opinion expressed by a judge, in his decision upon a cause, ‘by the way’ — that is, incidentally or collaterally, and not directly upon the question before the court; or it is any statement of law enunciated by the judge or court merely by way of illustration, argument, analogy, or suggestion.... In the common speech of lawyers, all such extrajudicial expressions of legal opinion are referred to as ‘dicta,’ or ‘obiter dicta,’ these two terms being used interchangeably.” William M. Lile et al., Brief Making and the Use of Law Books 304 (3d ed. 1914).

The GAO is not a court and so, technically, does not make holdings. It just renders opinions and makes recommendations about this or that. It likes to refer to its decisions as its "case law," but they're not law at all, because they're not binding on anyone.

GAO statements to the effect that the purpose of debriefings is to help offerors improve their proposals are undoubtedly based on the pre-FAR regulations and have no basis in statute or FAR. Today, the term debriefing appears in 27 places in the FAR system, and in none of those places does it say anything about the purpose of a debriefing being to help offerors write better proposals. If you want to think of GAO opinions in terms of holdings and dicta, then they are dicta, not holdings, because the GAO has no authority to rule on the purpose or quality of debriefings. Bottom line: Who cares what GAO thinks about the purpose of a debriefing?

Don't believe everything your lawyer tells you or states in a memo, and don't pass it on, like a bad cold or the flu, until you've checked it out.

Today, the purpose of a debriefing is to comply with the requirements of statute and regulation. Period. However, you might say that the purpose is just to tell them why they lost. What they do with that info is their business. The notion that government people can help offerors improve their proposals is something of a laugher, since the government folks don't do all that well with their own solicitations. But if your personal purpose is to help the offeror or avoid a protest, that's fine, I'm sure. No one will object. Those are worthy purposes.

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Vern,

The facts you post are interesting and useful. Thanks for posting them.

As for your editorial, I respectfully disagree with some of it.

"Don't believe everything your lawyer tells you or states in a memo, and don't pass it on, like a bad cold or the flu, until you've checked it out."

You seem to have overlooked the fact everything I said was true.

Nowhere did I say I believe everything my lawyer tells me and nowhere did I say I didn't check it out. If someone were to do those things, I would agree that would be silly behavior. As it stands, I did check it out, found it to be true and useful, followed it, and found it to be helpful.

Curmudgeons notwithstanding, I will continue to pass along true and helpful information to help others navigate the complex world of Government acquisition as others have helped me.

Regardless of whether GAO is a "real court" or not, their decisions still serve the purpose of implementing statute by building the body of common law. The FAR implements the skeleton of statute and case precedent helps flesh it out. It would be foolish to ignore sound legal opinion and established case history.

As for your statement, "The notion that government people can help offerors improve their proposals is something of a laugher, since the government folks don't do all that well with their own solicitations."

On this I agree. And that's another benefit of doing debriefings with purpose and integrity - we as the Government can learn how we can do it better.

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Guest Vern Edwards

Not everything you said was true.

It is not true that the GAO "held" what you said it held. GAO said it, but did not "hold" it.

Moreover, the GAO does not "build the body of common law." It does not even build the body of administrative law. The GAO does not make law of any kind. It does not have the standing of a court, a board of contract appeals, or, for example, the SBA Office of Hearings and Appeals. GAO decisions are no kind of "law." Agencies do not have to comply with its recommendations. The GAO is not within the court system, which is why you cannot "appeal" a GAO decision. As for "sound legal opinion," the Court of Federal Claims has sustained protests because agencies followed unsound GAO opinions and recommendations.

As for believing what your lawyer told you, you believed what the lawyer said the GAO had held, even though you admitted you didn't understand the distinction between a holding and dicta. And you passed it on: "GAO has held that the point of debriefings is to allow the unsuccessful offeror to improve their own product and have a better chance of award in the future. " Moreover, GAO said that in the 1993 case you cited, after that "purpose" had been omitted from the FAR.

Please don't consider this a personal attack. I welcome you as a new interlocutor. But all Wifconers learn that what makes the site valuable to all is that when you say something you might be publicly challenged. Nothing keeps us on our toes more than knowing that there will always be someone out there, waiting to challenge you.

The key thing that we agree about is that full disclosure debriefings are good practice.

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Vern,

Noted, and thanks. I assure you no offense was taken! Iron sharpens iron - it's how we all learn and improve.

That said, the point remains. This is actually one of my biggest pet peeves with Government contracting. We get so wrapped around the axle that we lose sight of the big picture. Why we do something matters. If we ignore why we're doing something, we inevitably mess up how we accomplish it.

You may think the why of debriefings is irrelevant. I don't. I hate the fact that in Government we have totally lost sight of the forest for the trees. Sometimes GAO is my ally in this, sometimes they aren't.

So, zooming out to the forest for a moment, the point remains that GAO decisions inform practical implementation of the FAR and agencies react accordingly. It's a moving landscape. The bare-bones language of the FAR may be interpreted differently as time goes on as we learn from our mistakes and make new ones.

And, I'm not so sure GAO hasn't "held" it. This isn't simply the opinion of some lowly attorney in some back-woods office. This holding (if I may be so bold) is the basis for the concept of "extended debriefings." Entire agencies are moving out on this, which is a major paradigm shift in how debriefings are accomplished.

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onliberty,

The debriefing you describe in your 3:01 posting is much more narrow than in your 12:58 posting. An unsuccessful offeror would have to file a protest to get the documents and information it wants. The debriefing rules prohibit the release of information in para. ( e ), but all of that information and more is immediately released in the first steps of a protest.

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Guest Vern Edwards

onliberty:

I agree that "the why" of debriefings matters. That's not what we're arguing about. We're arguing about the GAO's sometimes-stated assertion that the reason is to help losers improve their proposals.

To me, the purpose of a debriefing is to provide losers with information to which they are entitled by law. Speaking personally, another purpose is to convince a loser that you made a sound decision. I don't care about helping an offeror improve its proposals. Neither statute nor regulation say that's the purpose of a debriefing. It's okay with me if you care about that. That's your business.

As for the GAO: I don't care what they think is the purpose of a debriefing. Their remarks about that are just their opinion. Their remarks are not holdings and they are not case law. They are constructed around case law principles, and the GAO refers to its "case law," but they are not law of any kind. That's my main point. Your lawyer was wrong to tell you otherwise. At most, they are predictive of what GAO will decide. They are not binding on executive agencies.

Referring to the GAO's statement about the purpose of debriefings, as if it had some legal force was misleading. The GAO does not make decisions about entitlement to or adequacy of debriefings. See Healthcare Technology Solutions International, GAO DEc. B-299781, July 19, 2007:

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

GAO has merely opined about the purpose of debriefings. What it says may be true or false, but it's not legally binding. That's my point. My point is not that you are wrong to say that the purpose of a debriefing is to improve proposals. If that's your purpose, that's fine with me. It's a good purpose.

I think GAO does what Congress asks it to do. It keeps the system "honest" by subjecting it to scrutiny, and it lets the losers blow off steam. GAO does its job pretty well, but it's opinions and statements are not always sound, and the Court of Federal Claims has held against agencies that followed recommendations in faulty GAO decisions. See Rush Construction, Inc. v. U.S., 117 Fed. Cl. 85 (June 30, 2014):

[T]he court finds that the Army Corps of Engineers Jacksonville District was arbitrary and capricious in implementing the GAO's recommendation to cancel the contract award to RUSH, because the GAO recommendation on which the agency relied was an irrational one.

What I'm saying here is not consistent with things I've said in the past, but I have reconsidered my earlier thinking about the GAO. They are a necessary evil, but they have done real harm to the acquisition process. One example would be their decisions about clarifications and discussions in source selection. I think OFPP's "myth-busting" memo, by its former administrator, is ironic, because the "myth" arose in part from fear of protests about communications between the government and offerors. The GAO has created a lot of confusion in that regard. The executive branch should be more assertive about rejecting some GAO findings and recommendations.

See "A Critical Assessment of the GAO Bid-Protest Mechanism," by Metzger and Lyons, published in the Wisconsin Law Review and available at http://hosted.law.wisc.edu/lawreview/issues/2007-6/metzger_lyons.pdf:

Although the GAO’s decisions are “recommendations” and lack the force and effect of law, agencies rarely fail to implement these recommendations... [T]his Article suggests that decisions of the GAO need not receive the deference that agencies have historically afforded them.

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