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Changing the basis of non-award in the Agency Report? Or debriefings that hadn't included the real basis for non-award?


ax12901

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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!

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1 hour ago, ax12901 said:

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.

 

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."

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On 11/14/2023 at 3:25 PM, ax12901 said:

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?

GAO generally gives little or no weight to reevaluations and judgments prepared in the heat of the adversarial process. Noble Supply and Logistics, B-410788.4, B-410788.5, B-410788.6, B-410788.7: Jul 29, 2015 (citing Boeing Sikorsky Aircraft Support, B‑277263.2, B-277263.3, Sept. 29, 1997, 97-2 CPD ¶ 91 at 15).

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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.

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On 11/14/2023 at 5:25 PM, ax12901 said:

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!

If your situation is real and if you have an attorney, this is pretty basic knowledge for anyone who reads protests.

In particular, the attorney should easily be able to research the question, if non-attorneys here can provide it. I’m also aware of the scenario but didn’t respond as others already were providing the information.

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