Oyster

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 Data. Phoenix 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.

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.

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.

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.

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.

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."

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.

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.

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.

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.

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.

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.

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)

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.)

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.