As those in the federal contracting community wait anxiously for rumored and hinted at changes to the Federal Acquisition Regulation (“FAR”), we are beginning to evaluate how certain of those changes might most impact our clients. In the first of a series engaging in some mild—or wild, depending on your outlook—speculation about these potential changes, we take a look at how the removal of certain FAR requirements might impact bid protests.
One of the cardinal rules of bid protests is that protests not alleging solicitation improprieties must be filed no later than 10 days after the basis of protest is known or should have been known. 4 C.F.R. § 21.2(b). There is a key exception, however—for procurements under which a debriefing is requested. If requested, a debriefing is required, and the initial protest cannot be filed before the debriefing date offered and must be filed no later than 10 days after the debriefing concludes. In other words, a protester’s timeliness clock does not start ticking until the debriefing concludes.
But what does it mean for a debriefing to be “required,” and does that requirement stem primarily or exclusively from the FAR or from statute? Our understanding is that the FAR re-write currently underway is intended to eliminate non-statutory FAR requirements, which means identifying a statutory basis for FAR clauses will be key to understanding the potential scope of any pending revisions. FAR 15.506 is perhaps the most commonly cited provision creating a “requirement” for agencies to offer debriefings in certain circumstances, but the requirement for a post-award debriefing in certain circumstances is actually established by 41 U.S.C. § 3704, which provides:
When a contract is awarded by the head of an executive agency on the basis of competitive proposals, an unsuccessful offeror, on written request received by the agency within 3 days after the date on which the unsuccessful offeror receives the notification of the contract award, shall be debriefed and furnished the basis for the selection decision and contract award.
Given their statutory origin, debriefings should continue even if removed from the FAR, meaning the Government Accountability Office (“GAO”) protest deadlines would likely remain unchanged for standalone contracts.
Notably, though, 41 U.S.C. § 3704 applies only to contracts. While FAR 16.505 extends the debriefing requirements of FAR 15.506 to procurements for orders under multiple award contracts where the value of the order exceeds six million dollars, there is no statutory requirement to provide debriefings for task order procurements, regardless of their size. Accordingly, if both FAR 15.506 and 16.505 were removed, protests of task orders would have to be filed no later than 10 days from when the basis of protests was known or should have been known, while protests for standalone contracts under FAR Part 15 would continue to be governed by the debriefing-triggered timeliness requirements.
GAO has repeatedly held that only a “procurement statute or regulation” can make a debriefing “required”; agency policy is insufficient. As a result, only Congress would be able to remedy the dichotomy between timeliness triggers for contracts and task orders created by the removal of FAR 16.505, unless the administration changed course on the regulation.
This dichotomy would also extend to the contents of debriefings, at least for civilian agencies. While FAR 15.506’s minimum requirements for the contents of debriefings mirror those outlined in 41 U.S.C. § 3704, FAR 16.505 has no statutory impetus. Accordingly, agencies would not be required to provide any information to offerors after award of a task order. It is unclear if the FAR rewrite project will extend to agency supplements, including the Defense Federal Acquisition Regulation Supplement (“DFARS”), but it’s worth noting that the enhanced debriefing procedures outlined in the DFARS were statutorily mandated by the 2018 National Defense Authorization Act and therefore may be required even if cut from the DFARS.
If—again, hypothetically—Section 16.505 was removed from the FAR, there could be a drastic reduction in the number of task order-related protests or in their likelihood of succeeding. Under the Federal Acquisition Streamlining Act (“FASA”), the Court of Federal Claims (“COFC”) lacks jurisdiction to hear protests challenging the issuance or award of a task order. And unlike at COFC, protesters at GAO are not entitled to the full evaluation record in response to their protest. Rather, GAO will require the production of documents related only to the specific protest grounds filed. Without a debriefing, task order protesters may struggle to identify sufficient bases of protest to receive portions of the record that reveal errors. This could reduce their likelihood of success and generally discourage task order protests.
Of course, debriefings aren’t the only things on the chopping block for FAR 2.0. Agency-level protests could disappear entirely. While GAO and COFC each have jurisdiction established by statute, agency protests have no such basis. The agency-level protest process was established by FAR 33.103 in a response to Executive Order 12979 issued by President Clinton in 1995. If FAR 33.103 did not survive into the next iteration of the regulations, protesters would have no option to raise their challenges with the procuring agency. Although agency protests may be at risk, GAO is both statutorily mandated and has its governing regulations located in a different section of the Code of Federal Regulations from the FAR—which would likely spare it from significant shakeup.