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It was a solicitation under a GWAC (not schedule). And yes, 8.4 wasn't appropriate, obviously since that is for FSS. However, the solicitation terms should apply even so.

A solicitation under protest stated the following in its Addendum to the FAR 52.212-1: (red font used above is my own, but not the bolding and underlining which is that of the solicitation's) Subsequently, in its agency report, the Agency stated in this regard: "The reference to FAR 8.4 in the solicitation was harmless error." Note that not only had the solicitation stated that FAR Subpart 8.4 was to be used, the Agency had 'doubled down' on this assertion by both bolding and underlining the 'NOT,' above, and also further amplifying it by prefixing their statement that the solicitation would be not conducted under FAR Part 15 with, "Offerors are hereby instructed that regardless of any language that may be used in this solicitation,..." Contrary to the Agency's diminishment of this 'error,' it does appears to be a major procedural error insofar as FAR Part 15 vs FAR Subpart 8.4 evaluations are conduct completely differently. Does anyone know of any GAO decisions which relate to agencies evaluating proposals under a different FAR Part than that stated in the solicitation? It hardly seems to constitute a minor informal error, but a reason the GAO might sustain a protest. BTW, this comes up because the protest stated that the Agency was wrong to use FAR Part 15 in evaluating the proposals when the solicitation cited FAR Subpart 8.4, and the Agency's response to that was that what was wrong wasn't that the Agency evaluated under FAR Part 15, but that it was wrong, but in a harmless way, that the Agency had stated in the solicitation it would evaluate under FAR Subpart 8.4.

Say that an offeror submits a proposal in response to a US Government solicitation. The offer is not awarded and the Agency provides a debriefing. The offeror protests the award to the GAO. The Agency goes back to prepare an Agency Report as part of the protest. As a result, they completely change the basis for nonaward from what was given in the debriefing. This appears to be unfair given that the protestor had the opportunity to study the original debriefing to prepare the original protest. However, if the Agency changes the basis for nonaward after the original protest (or if the basis of nonaward was never changed but was just different than was in the original debriefing), then it appears to be a obvious violation of procedure that shouldn't be allowed, yet I've failed to find any prohibition against this in the FAR/CFR. I think this is unfair as a protestor does not have the same opportunity/process to challenge new arguments after the Agency report, as it did when it originally filed its protest in response to the debriefing. Like one side introducing new arguments in a court trial after the other side has already presented its case and rested. Does anyone know of any decisions that touch on changing the basis of nonaward in the course of a protest, or alternatively, debriefings that didn't actually reflect the real basis for nonaward? After all, this seems like it should be a situation that sometimes does happen, for one reason or another. People aren't perfect and it must often happen that debriefings are improperly prepared or leave something material/critical out. Thanks!

The GAO declined to dismiss: "At this time, GAO declines to dismiss the protest. The agency's request for dismissal (Dkt. No. 11) is denied. The agency's 5-day letter and report remain due as set forth in the Acknowledgment Package (Dkt. No. 6)."

Thanks. FreeAlliance is indeed cited in the protest. Strangely, or maybe not so strangely, the Agency counsel ignored that and focused on page limitations.

Well, in this protest, the main argument was that the Agency used unstated evaluation criteria. Various decisions from previous FAR Subpart 8.4-relevant protests were cited. Then almost in passing, and not as a legal argument of any kind, it was mentioned a little further on in the protest that it was a bit unfair to apply such unstated evaluation criteria when the page limitation was only a small 5-pages. That is the point that the Agency counsel latched on. Not on the earlier points about unstated evaluation criteria. Not defending that these criteria in fact were stated or could be reasonably inferred. But that in the very last amendment to the solicitation, the page limitation had been increased and was in fact, no longer 5-pages. Therefore, factual error in the protest. Therefore, basis for summary dismissal. That and the true fact that there had been no request for a 'debriefing' (Agency counsel's term) for this solicitation under FAR Subpart 8.4. Which as Oyster had said above, might have been relevant if the protest was to be filed more than 10 days after award - not the case here. These two were the grounds for the summary dismissal request. And as mentioned in response to Oyster's post, if there had been a procedural error such as timeliness of the protest, certainly that would/should have been used as the grounds for dismissal, instead of the page limit and 'debriefing' issues.

Thanks! It turns out that the CO did give an extensive explanation with the award notice, certainly one that exceeds 'brief explanations' from many COs. Often COs cite FAR 16.505(b)(6)(ii) and say since the award was under $6M, no debrief is required and none will be provided, or alternatively, if under FAR Subpart 8.4, their brief explanation will simply be that you didn't receive the award because you were not technically acceptable, without any further explanation of why it was that you weren't technically acceptable. In contrast, what the Government actually outright called the "debrief letter" in the present case was practically voluble. So it was perhaps natural to think that this document the CO himself referred to as the "debrief letter" was already the "brief explanation" required by FAR 8.405-2(d), and a further request for yet another "brief explanation" would be pointless and maybe even appear to be some sort of gamesmanship or someone just being vexatious, when the Agency had already provided so extensive a document at time of award. With the so-called "debrief letter" (which was apparently not the "brief explanation", given the Agency counsel's dismissal request), it was already clear that a protest was called for over the unstated evaluation criteria cited, and so the protest was filed within 10 days of the award, as required. Nothing was procedurally wrong, which is why the Agency counsel didn't claim dismissal on procedural grounds, but the "substantive" (?!) grounds of having cited the wrong page limitation in the protest itself (goes without saying the actual offer met the correct page limit or else that would have been the dismissal grounds) and the secondary grounds of having not asked for a debriefing for a FAR Subpart 8.4 solicitation (the Agency counsel did use the term 'debriefing' and not 'brief explanation' which makes me think that he himself was not aware that the solicitation had actually been issued under Subpart 8.4 and not Part 15). All in all, this is all very strange to me and irregular. And I wonder if the Agency counsel just gave the assignment of writing the dismissal request to his paralegal, except I think even a paralegal would come up with a stronger basis for a dismissal request. I will be shocked if the GAO dismisses as a result, but if they do, I promise to post here what the GAO counsel says as the rationale for agreeing with the Agency counsel on his dismissal request.

Different topic but concerning the same protest: Has anyone ever seen an Agency counsel claim as a grounds for dismissal that a protester did not ask for a debriefing on a solicitation that was competed under FAR Subpart 8.4 where only "brief explanations" are required by FAR 8.405-2(d)? Seems like another distraction from the main issues as that would appear to require offerors to always ask for a debriefing when 95% of the time, COs would refuse since they only have to give a "brief explanation" under FAR Subpart 8.4. (Either this, or the Agency counsel in this case failed to notice that the solicitation itself states it isn't a FAR Part 15 solicitation.) BTW, those were the only two grounds for dismissal. Factual error on number of pages and not explicitly asking for a debriefing on a FAR Subpart 8.4 solicitation.

GAO

Clearly in this case, the Agency lawyers are trying to go for a shortcut and avoid having to prepare an agency report because they are claiming the protest is substantively defective since it made a factual error in stating the number of pages that were allowed for the technical approach. The point is that this is clearly not a substantive defect, but I was wondering if more could be done to support the notion that misstating a page limit in a protest is nonsubstantive, then just stating that as an assertion.

The basis of the dismissal is that the protest claimed that the page limit was 5 pages when the Government said in an amendment the page limit increased to 15 pages. More specifically, the protest mentioned in a non-substantive way (i.e., it was not the main argument, which was actually centered around unstated evaluation criteria) that there wasn't much space in the technical approach because it was limited to 5 pages. The Agency lawyer pointed out that the actual limit was 15 pages and asked for a dismissal due to this factual error. Clearly, I understand a dismissal if it was the other way around. A 15 page proposal when the page limit is 5 pages. But a 5 page proposal when they had in the Q&A increased the page limit to 15 pages appears irregular and a distraction from the main issue.

In an Agency's filing for a dismissal of a protest, they principally cited a minor and non-substantial error in the protest itself (not in the original offer, but in the protest of the award), which appears to be a distraction from the main issue. They did not address the main claim in their request for dismissal. It seems that protests often contain some minor factual errors, and they typically do not view these as fatal flaws unless the errors go to the core of the protestor's argument. Minor factual inaccuracies alone should not be sufficient grounds for dismissing a protest. But that's just logic speaking. Does anyone know of any GAO or COFC decisions that have touched on this point?