Maria is a partner and the Chair of the Government Contracting department. She focuses her practice exclusively on federal government contracting and procurement, guiding her clients throughout the entire lifecycle of their...Read More by Author
Avoiding Common Bid Protest Mistakes, Part 3: “Competitive Range” Confusion
Welcome back, loyal readers! To help you through this protest season, we’ve been working our way through a series of posts dealing with the most common bid protest mistakes that contractors make. Thus far, we’ve covered pre-award protests, and required debriefings. This week, we will be talking about “competitive range” debriefings and protests.
Let’s start at the very beginning. Do you know what a “competitive range” is? Do you know how and when to request a debriefing, or assert a protest, concerning your exclusion from the competitive range? Don’t worry – if you answered no, you aren’t alone. It is not at all uncommon for even sophisticated and experienced contractors to be unfamiliar with, or confused about, competitive range issues.
A “competitive range,” in effect, is a winnowing down that occurs in some competitive procurements under FAR part 15 (Contracting by Negotiation). Sometimes, in negotiated procurements, the agency will receive offerors’ proposals, do a best value determination, and make an award or awards. Other times, an agency might decide that further “discussions” with the offerors are necessary in order to obtain the best value for the government. In these cases, the agency will evaluate all proposals and set a “competitive range.” Pursuant to the FAR, the competitive range should be “comprised of all of the most highly rated proposals.” Offerors selected to be in the competitive range will proceed to the next stage of source selection, where they will have discussions with the agency, and submit revised proposals. Award will then be made on the basis of the revised proposals. Meanwhile, those offerors not selected to be part of this competitive range will receive notice that they were excluded from the competitive range. Many contractors make their first mistake at this exact stage: They believe that they should wait until the final award decision is made before requesting a debriefing, or protesting. Not so! The notice of exclusion from the competitive range is critically important, as it is this notice – and not the final award – that triggers the initiation of the debriefing/protest timeline.
Remember that, if the agency has established a competitive range, you are dealing with FAR Part 15 procedures. Also remember from last week’s post that, under FAR Part 15, debriefings are required for FAR Part 15 procurements. So, what is the next step after receiving your notice that you have been excluded from the competitive range? Request a debriefing, and remember to do it in writing, within 3 days of receiving your notice.
Pursuant to the FAR, you have the right to request that your debriefing be delayed, or postponed until after award. Some contractors do this so that they can receive more information as part of their debriefing (pre-award debriefings are less comprehensive than post-award debriefings). But beware! This is another common competitive range pitfall. A delayed debriefing does not automatically extend the deadline to file your protest; the FAR is very specific that delayed debriefings can “affect the timeliness of any protest filed subsequent to the debriefing.” In other words, if you delay, your protest might very well be late. What about if the agency itself delays the debriefing? Well, in that case, it needs to be provided no later than the time the post-award debriefings are provided; the effect it has on your protest deadline may depend on your specific factual circumstances.
As you can see, competitive range debriefings and protests can be a tricky area to navigate. The government contracting team at Obermayer is here to help you through it! If you have questions about debriefings or post-award protests, you can check out our recent GovConExaminer Live! Webinar on Asserting Bid Protests, or give us a call.
Next week, we will be tackling how to ask debriefing and post-debriefing questions, DoD Enhanced Debriefing, and the effect these things can have on your protest filing deadlines. Stay tuned!
The information contained in this publication should not be construed as legal advice, is not a substitute for legal counsel, and should not be relied on as such. For legal advice or answers to specific questions, please contact one of our attorneys.