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Competitive Range and Protest


Whynot

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I came across a scenario where prior to making award, the government gradually eliminated each bidder from the acquisition save one, by designating and notifying each of them sequentially one by one over time as being outside of the competitive range. Left with one acceptable bidder they then made award to the bidder after all pre-award protests time has elapsed. For the bidders that were outside of the competitive range, are they precluded from protesting the eventual award but can only protest their elimination from the competitive range within 10 days of being notified of their elimination?

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I really do not have any information on this situation. At first glance, I thought it a clever way for an agency to avoid protest by making award after the time has expired for any other bidder to protest – shifting protest from post-award to pre-award

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Were the eliminated bidders offered a pre-award debriefing and did they receive it?  Also, the protest period may not have lapsed.  Look at the Darlene Druyen situation where contractors filed protests several years after a contract was awarded because they did not know of the basis for the protest until then.

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I may be misunderstanding the post, or mis-applying the FAR, but I don't think an offeror in the scenario provided would necessarily be unable to file a post award protest with the GAO.  What follows deals with protests to the GAO, not protests to the CoFC which has its own rules and standards related to protests that may or may not benefit the protestor.  The offeror would have to make a timely debriefing request, specifically request that it be provided after award, then subsequently protest in a timely manner after the debriefing date.  If they want a chance at having performance of the awarded contract suspended, they will have to file the protest to the GAO within 5 days.

It is not clear from your post if the offerors were 1) originally excluded from the competitive range or 2) included in the competitive range, but subsequently eliminated.  Regardless, “offerors excluded or otherwise eliminated from the competitive range may request a debriefing (see 15.505 and 15.506)” (FAR 15.306(c)(4)).

Offerors excluded from the competitive range or otherwise excluded from the competition before award may request a debriefing before award (FAR 15.505).  Assuming the request is timely (within 3 days after receipt of the notice of exclusion from competition), the offeror may request the debriefing be delayed until after award. If the debriefing is delayed until after award, it shall include all information normally provided in a postaward debriefing (see 15.506(d)). Debriefings delayed pursuant to this paragraph could affect the timeliness of any protest filed subsequent to the debriefing (FAR 15.505(a)(2)).

The offeror then has 10 days to file a protest with the GAO after the protester knew or should have known the basis of protest (whichever is earlier), with the exception of protests challenging a procurement conducted on the basis of competitive proposals under which a debriefing is “requested and, when requested, is required,” that is, a debriefing required by law. In these cases, with respect to any protest basis that was known or should have been known before the statutorily required debriefing, the protester should not file its initial protest before the debriefing date offered to the protester, but must file its initial protest not later than 10 days after the date on which the debriefing was held (4 C.F.R. § 21.2(a)(2)).

According to GAO’s guide “Bid Protests at GAO: A Descriptive Guide”, they will generally dismiss as premature a protest filed before the debriefing date offered to the protester where the protest involves a procurement conducted on the basis of competitive proposals and a debriefing is required by law. That is, the protester is not required to file a “defensive protest” (i.e., a protest filed before the protester receives its required debriefing) when, for example, during the procurement, the protester learns of an agency’s evaluation judgments with which it disagrees or where the protester believes that the evaluation is not consistent with the solicitation’s evaluation scheme.

According to the guide, the purpose of the exception to the timeliness rules for competitive procurements, where debriefings are required by law, is to encourage vendors to seek, and agencies to give, early and meaningful debriefings prior to the vendor’s decision whether or not to file a protest. A protester, therefore, will always have up to 10 days after the required debriefing to file its initial protest.

If a protest is received within 10 days after award or within 5 days after a debriefing date offered to the protester for any debriefing that is required by 15.505 or 15.506, whichever is later, the contracting officer shall immediately suspend performance or terminate the awarded contract, except as provided by FAR 33.104(c)(2) implementing 31 U.S.C. 3553 (which I just found appears to have a typo at (d)(1); should state “may not”).

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Thanks.

Under COFC protests, there are no specific timelines to protest either pre or post award.

In my scenario, if the eliminated bidder did protest (pre-award), and if they prevail, then they get put back into the competitive range and will either win or lose the award. If they then lose the award then they could do post award protest. If they lose pre-award, they lose and are not eligible for a post award protest.

Is there anything wrong with having a final competitive range of only a single bidder?

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13 minutes ago, Whynot said:

Is there anything wrong with having a final competitive range of only a single bidder?

"An agency is authorized to exclude proposals from the competitive range that are not among the “most highly rated.” FAR § 15.306(c)(1). Our review is limited to whether the agency’s evaluation and competitive range determination were reasonable and consistent with applicable procurement statutes and regulations. ABM Gov. Servs., LLC, supra. In this regard, we have held that there is nothing inherently improper in a competitive range of one where the agency has a reasonable basis for its competitive range determination. M&M Investigations, Inc., B-299369.2, B‑299369.3". (Straughan Environmental, Inc. B-411650, B-411650.2, B-411650.3).

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57 minutes ago, Whynot said:

Is there any restriction on the timing of making a competitive range determination? Can it occur at anytime, say before or after discussions

When a competitive range is established, it is for the purpose of identifying who to conduct discussions with, so it has to occur before (FAR 15.306(d)).  Only clarifications (15.306(a)) and communications (15.306(b)) occur prior to the establishment of a competitive range.  Communications, among other things, are for determining whether a proposal should be placed in the competitive range.

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I think the issue would be then how the communications were characterized. The protester would have to argue that the communications were discussions and the government would have to argue that they were clarifications. I don’t have any facts on the scenario. But is it strictly prohibited to be eliminated from the competitive range after discussions?

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9 minutes ago, Whynot said:

 But is it strictly prohibited to be eliminated from the competitive range after discussions?

No.  See 15.306(d)(5).

Also, clarifications, communications, and discussions/negotiations are three different things.  Both clarifications and communications are authorized prior to establishing a competitive range.

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Companies excluded from the competitive range can request a pre or post award briefing.  Most want a post award debrief because the FAR  limits what can be divulged prior to award and they only get one debrief. The protest time starts with the debriefing for facts they learned from the debriefing.

I reduced a competitinve range of 3 to just one before.  We had our clear winner but wanted to get some better terms.. So we held further discussions and got a final proposal revision.   

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