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Imagine you’ve submitted a bid for a procurement that you believe your company is a shoo-in for. Nobody comes close to the experience and skills your company brings to the table. A while later, you learn that the new company down the street was awarded the contract. There clearly must be a mistake. The awardee doesn’t have half the experience your company has in this industry. Feeling wronged, you decide to file a bid protest questioning the award at the Government Accountability Office (GAO). Your lawyer informs you that a bid protest may be dismissed if the protester doesn’t qualify as an interested party. But you were an actual bidder who should have been awarded the contract. Of course you’re an interested party—right? It’s common to assume an unsuccessful offeror automatically qualifies as an interested party. However, not just any unsuccessful offeror is an interested party in the eyes of GAO. An “interested party” is “an actual or prospective offeror whose direct economic interests would be affected by the award of a contract or the failure to award a contract.” 4 C.F.R. § 21.0(a)(1). For a protest challenging the terms of a solicitation, GAO has stated, “an interested party is generally a potential bidder for the contract.” This is a pretty easy standard to meet. Alternatively, when challenging a contract award, “an interested party is generally an actual bidder that did not win the contract.” Other important factors could include the bidder’s standing in the competition, or the nature of the issues being raised. For the basics, we’ll focus on an interested party in a solicitation-terms protest versus a post-award protest. Protest of Solicitation Terms A solicitation-terms protest is also called a pre-award protest. To challenge solicitation terms, a prospective bidder is an interested party if the bidder has expressed interest in competing and has a direct economic interest. Typically, the prospective or actual bidder must be eligible for award. The most common reason for filing a pre-award protest is to challenge the solicitation’s terms. (learn more here Why File: A GAO Pre-Award Protest). When filing a GAO bid protest, “a protester is not an interested party to challenge the terms of a solicitation, even if the protest is sustained, if it is clear that the protester will be ineligible for award under the remaining terms of the solicitation.” DGCI Corp., B-418494 (Comp. Gen. Apr. 27, 2020). The protester must be eligible to compete for the award. This doesn’t mean the protester must be eligible on the terms they are protesting. Rather, the protester must be eligible under the remaining solicitation terms. Scenario One: ABC Company is bidding on a procurement. The solicitation calls for a specific license that is not normally required under this type of contract. ABC Company does not have the specific license required in the solicitation but is eligible under all the other requirements. Believing the licensing terms are overly restrictive and outside of industry norms, ABC Company files a pre-award protest. Here, the terms being protested are the reason ABC Company is not eligible for award. If ABC Company is successful and the licensing is no longer required, then ABC Company is eligible for award under the remaining terms. Scenario Two: Alternatively, the same ABC Company files a pre-award protest on different grounds, failing to include in its argument that the licensing terms are restrictive. GAO will likely find that ABC Company is not an interested party because even if the protest is sustained, ABC Company does not have the required license to be eligible for award. A Post-Award Protest There’s the saying that “If you’re not first, you’re last.” But when filing a post-award protest, your place in line matters. For a post-award protest, an interested party is an actual bidder or offeror with a direct economic interest. This is typically a bidder that was not awarded the contract or was eliminated from the competition. GAO has “generally found that a protester is an interested party to challenge an agency’s evaluation of proposals only where there is a reasonable possibility that the protester would be next in line for award if its protest were sustained.” Even if the protester was an unsuccessful offeror under a specific procurement, GAO will not view the unsuccessful offeror as an interested party unless there is a reasonable chance the protester will be the awardee if the protest is sustained. When there are higher-ranked intervening offerors, the protester will have to attempt to demonstrate to GAO that they qualify as an interested party. Scenario: ABC Company was the unsuccessful offeror of a procurement and believes the agency deviated from the stated evaluation criteria when making the award. If ABC Company was the “next-in-line” for award, then ABC Company is likely an interested party. ABC Company has a direct economic interest if the protest is sustained because there is a reasonably chance that ABC Company will receive the award. If ABC Company was a high-priced bidder that was not next-in-line for award, ABC Company must demonstrate that all the lower-priced bidders are ineligible for award for ABC Company to qualify as an interested party. Or it must demonstrate that the overall evaluation criteria, if applied correctly, could have resulted in award. For instance, if it was a lowest-price technically acceptable procurement, then a protester likely has to show that its price evaluation was incorrect, and correcting the price evaluation would have vaulted the protester to the first place in line in terms of pricing. Another factor GAO will consider is the remedy the protester is seeking. For example, if an actual bidder files a protest on the grounds that the agency improperly removed the bidder from competition, GAO may find the bidder is an interested party if the bidder would have the opportunity to compete again were the protest sustained. Note that interested party status is often determined at the front end of a protest. So, the initial protest must contain information or allegations sufficient to demonstrate that the protester is an interested party. Knowing who qualifies as an interested party in a GAO bid protest is an important consideration to keep in mind when deciding whether filing a bid protest is for you. Questions about this post? Email us. Need legal assistance? Call us at 785-200-8919. Looking for the latest government contracting legal news? Sign up here for our free monthly newsletter, and follow us on LinkedIn, Twitter and Facebook. The post Back to Basics: Interested Parties first appeared on SmallGovCon - Government Contracts Law Blog.View the full article

Yes. Many agency policies say files can be sent to storage immediately after closeout. When that happens, the transmittal information to NARS must indicate when the files can be destroyed.

Then again, I’m antiquated, too. 🥸

Carl, I don’t disagree with you. For service contracts at least, what need is there to retain old files edit: or retain files longer than six years? And yes, the six year statute of limitations for filing claims is relevant. However, I’d say that, over the years, I sometimes needed more information than what the as-built drawings contained for construction contracts. Especially if something wore out or failed or if it failed within extended warranty periods. Shop drawings and approval comments were often helpful. Even the daily QC and QA reports sometimes were relevant to investigations to determine what might have happened. This was regardless of whether or not someone was responsible contractually. We may just have needed to source repairs or replacements. I can also see the need to be able to electronically retain information for some supply contracts for issues or repairs down the road. Knowing the dates and sources of purchases for instance. Edit: To clarify, my comments are simply related to be able to retain electronic files of construction (or some supply) contract beyond six years. As Carl noted why retain old service contract files beyond the statute of limitations for submitting a claim? No longer necessary to keep file cabinets and physical files, which was probably a major reason for requiring destruction of old files after six years. Cost and space I remember spending hours in warehouses sifting through shelves and boxes to review contract info.

Thanks. I have spoken with NARA and they requested I contact our agency's records office as well, which I have. NARA clarified that the "retention" period does refer to the date when the records can be destroyed. I didn't realize that each individual agency sets the requirements for when records can be transferred to storage (e.g., Federal Records Center, cloud storage, etc.), so hopefully our records office can shed light on that. Thanks!

Long time ago I was pretty expert at file retention. Today not so much but I have always understood that the 6 year is based on the Disputes Act statute of limitations. This said retaining lots of stuff is much easier in this day of e-storage but there are a few catches in my view..... Why retain if there is no anticipated use? Do you really think retaining a usual janitorial contract has any use after the 6 year period? I will not even attempt to calculate but it seems infinite storage is at no cost. After all I have to pay for cloud storage that my phone can't hold or extending at a cost what my computer at home needs to store. There are permanent designations for such things as "as-builts'" etc. connected to construction one should not confuse a "contract" with such documents. I would note that the document I linked provides a distinction between "permanent" and "temporary". And related to the cost matter not to be forgotten is the cost to convert or update e-file. Maybe todays world of e-documents makes for easy as builts but I have to think someone someplace is somehow doing the effort and not like they use to in construction shack with red lines on a drawing like the olden days? In very casual conversations with folks today that deal with the matter this crops up - the e-file filing system and designation. Simple example sometimes I have trouble finding something I e-filed (document, photo, email, etc.). In some cases I can imagine it is like trying to find Waldo. Yes storage electronically is a great advancement with the advancemet coming with its own considerations but I wonder if retention period is not really one of them. Post Script - @ContractingGuy I know you said "my agency" but again with my recollection engaged it seemed that back in the day the agencies I worked for had a records specialist somewhere within the organziation. Just a thought is "my agency" the acquisition stove pipe or have you reached beyond to find help to answer your questions? You might want to check this link out if you have not - https://www.archives.gov/records-mgmt/agency#:~:text=NARA%20has%20oversight%20authority%20for,%2C%20College%20Park%2C%20MD%2020740.

Thanks. I feel like there has to be something out there that specifies it in plain English, but I cant find anything. I do think everything I have found supports the point that a document can be archived anytime after closure and does not need to wait 6 years after final payment to go into archives (with the 6 years after final payment being tied specifically to destruction). I'm 99% certain that the 6 tears after final payment requirement specifically applies to when a contract can be destroyed. I just wish there was a document or guidance out there that calls this out. I have also sent a message to NARA to see if they can answer this.

I think that the six year limit is antiquated, based upon paper file retention methods that required space and resources for box or file cabinet storage. I found it occasionally necessary to review old contract files. Once, I had to review files of the Army Corps of Engineers construction contracts in Saudi Arabia to support determination of failure responsibility and/or enforcement of roof warranties for thousands of failed roofs. I discovered that the Saudis had fully preserved all of our old paper contract files in libraries at the various major project sites. When I was in the Air Force fifty years ago, fortunately the Base Civil Engineer Squadron had saved all the technical contract files from the original Air Base Construction 15 years earlier.. Every time that SAC made Operational Readiness Inspections, we had to hide the filing cabinets or files above the ceiling at CE. 🤪 Thank God for the ability to electronically store contract files now days.

It will be interesting to see how this procurement plays out. According to the Protest Decision, the labor portion of the task order is Fix-Priced, with travel costs being cost reimbursable. Paying almost 1.7 times more money than the lowest task order proposal or 1 1/3 times the next lowest task order proposal (of the three mentioned proposals) would seem to warrant significant justification…

Why are you referencing FAR 17.204(e) when FAR 16.505 is the more appropriate reference for ordering periods for IIDIQ contracts? Also, you say, “The specialist's opinion is if a task order needs a longer OP, then it gets its own deviation." Task Orders don't have ordering periods, they have PoPs. Can you clarify what you are asking, as it's not apparent from your original post?

Maybe this will help. https://www.archives.gov/files/records-mgmt/pdf/dfr-2000.pdf My read retain 6 years either at agency or authorized retention facility. Schedule for destruction or other action (donate) but NARA authorizes.

My agency is in the process of archiving contract files (electronically). FAR 4.805 states the “retention period” for contracts at 6 years after final payment. We are having conflicting interpretation of what is meant by “retention”. Does this mean after a contract is closed, it must remain at the agency for 6 years after final payment before it can be archived, or does it mean a closed contract can be destroyed 6 years after final payment? Assuming it means a closed contract can be destroyed 6 years after final payment, is there a specific period of time after closure that must pass before it can be archived (e.g., at the agency, in an electronic archiving capacity, or at the federal records center), or can it be archived any time after closure? I have looked through the FAR, NARA's GRS 1.1, and 36 CFR § 1225.14(c), but can't seem to find a clear answer. I'm sure it's stated in a roundabout way but I'm not seeing the clarity.

I don't understand the question. FAR 17.204(e) has to do with options. The OP didn't say the contract had options.

I would look to FAR clauses 52.216-18 Ordering and 52.216-22 Indefinite Quantity (or whatever is in your contract) to clarify the difference between the period of performance (effective period) during which task order work can be performed (which is probably specified in both the IDIQ and the task order) and the ordering period during which orders can be placed against your IDIQ, which is only in the IDIQ (since you won't be placing orders against your task order). Clearly if you modify either the ordering period or the period of performance (effective period) of your IDIQ it will not change the duration of the work the contractor is required to perform under a task order, so no modification of dates in the IDIQ is "flowing down" to the task order. But it sounds like maybe your question is if you intend to modify a task order to extend the period of performance beyond the five year limitation in FAR 17.204(e) do you need to get approval for all IDIQ task orders to potentially go beyond five years (although again, any actual modification to a task order period of performance would have to be made to that task order) or get approval for just the one task order to go beyond five years. I don't think that's a FAR question, it probably depends on both your agency procedures for approval and whether you have a need for longer periods of performance on all task orders or just one. Or maybe I'm misreading the entire question, I'm confused by the implication that your task orders have ordering periods and that your agency practice has been to increase the duration of work to be performed under task orders via modifications to the IDIQ (what would the contractor even invoice against?)...

The biggest problem with the FAR is that it implements laws that reflect 19th Century government ideas. After the “revolution” it will still implement laws that reflect 19th Century government ideas.

Experts? Talking?

You’re not.

Perhaps I am being too hard on him.

That’s the chief reason from my perspective. I’ll the risk aversion setting people work in contributes. Trying something new and different is a challenge many don’t want to take on. Copying/pasting from prior examples is easier to both do as well as obtaining review boards and legal approval. Then there is the issue of program office managers afraid of not having control. They are used to seeing things like technical approach, management plans, resumes of proposed staff, spending plans, and so on. Those are issue they want to see in proposals and evaluate. They like copy/paste.

Based upon the practice at my agency, modifications to extend POPs for IDIQ contracts list the base contract number, and it's been understood that changes at the base contract level flow down to the task orders (deviating from FAR 17.204(e)). Recently, a senior contract specialist is questioning whether or not a deviation to extend the POP at the base level actually flows down to the task orders, which affects the date range of ordering periods (OP). The specialist's opinion is if a task order needs a longer OP, then it gets its own deviation. So, is it better to do a class deviation to apply across all the task orders under the IDIQ? The specialist's position stems from the definition of "contract action" and applying that a deviation is written for "a" contract action. Otherwise, multiple task orders under an IDIQ contract should require a class deviation if ordering periods need to be extended. Here are the FAR references used to generate the question: FAR 1.403, 1.404, 4.601, and 17.204(e). Any insight is appreciated.

I give him credit for soliciting informal feedback on LinkedIn.

I haven't read the article, but Part 33 covers bid protests and CDA claims. In regard to protests, other than agency protests why not just reference the bid protest rules of the GAO and COFC? If any further guidance is needed, that could be added much like the FAR has done with the CASB rules in Part 30.

(Emphasis added above) Thanks for highlighting this distinction Vern - the takeaway is spot on. If readers want to know why training without education is dangerous, just look at our source selection process - all training, zero education. The result is we often end up with copy/paste solicitations without thoughtful evaluation factors or methodologies that cause source selections to take way too long evaluating "essays" that are not important to predicting which offeror and their proposal might be the best value.

Both To note a couple items that stood out from the DoDI, Section 5 establishes the "low expectations" I criticized in my piece and Section 3 makes the President of DAU as the Chief Learning Officer... in my 16 years I haven't seen any real leadership from that role, if anything the standards and courses have eroded more and more...whose responsibility is it to say "this is not or cannot produce the acquisition workforce we need to generate the acquisition outcomes we need" if not a Chief Learning Officer? Execution is a huge problem too. It's apparent from some of the pockets of excellence that people can still excel in this profession and pursue mastery (as Vern likes to say), but we definitely make that pursuit way more difficult than it ought to be. For one, we don't leverage peoples' most formative moments when they enter contracting to properly educate and inspire them. I mention this in the piece so I won't further belabor the point here. I listened to the two podcast episodes you recorded (thank you for those btw) and I think in both comments were made that contracting people don't read. I think that's fairly accurate, BUT we ought to consider why they don't read: one of my hypotheses is because the "professional" products the acquisition system currently provides them are mostly garbage. I remember in high school when I went through a stretch in my English class of reading a few assigned books I did not enjoy - it made me not want to read for a bit. That's our contracting people's daily existence - suffering through reading bad policies, Powerpoints, and guides that they don't benefit from so at some point many of them just give up (i.e. people won't go back to try and drink from a well that's dry).

Seems to me this LinkedIn post is a way to talk with industry and government experts.