post-award Archives - Government Contracts Navigator

May 19, 2022: “Special Focus on FSS Post Award Compliance and Audits” at ACI “BIG FOUR” Pharmaceutical Pricing Boot Camp

Merle M. DeLancey Jr. will serve as a speaker for the American Conference Institute (“ACI”) “BIG FOUR” Pharmaceutical Pricing Boot Camp, taking place May 18–19, 2022, as an interactive live virtual conference.

Michael Grivnovics, Director, Federal Supply System, Contracts Division, Veterans Affairs Office of Inspector General, will join Merle to present the “Special Focus on FSS Post Award Compliance and Audits” session on May 19 at 9:00 a.m. EDT.

For more details, visit our website.

DoD’s Final Rule on Enhanced Post-Award Debriefings Provides Offerors Clarity on Automatic Stay Deadlines and Access to Agency’s Redacted Source Selection Decisions

Robyn N. Burrows and Luke W. Meier

The Department of Defense (“DoD”) recently issued its final rule amending the Defense Federal Acquisition Regulation Supplement (“DFARS”) to provide offerors enhanced post-award debriefing rights. DoD has provided these enhanced debriefing procedures since 2018 through a FAR Class Deviation, allowing offerors to submit additional questions after receiving the post-award debriefing. Four years later, DoD’s final rule clarifies when the clock for an automatic stay begins in an enhanced debriefing and provides greater transparency by allowing unsuccessful offerors in certain procurements access to the agency’s redacted source selection decision.

We highlight below several key elements of the final rule:

Access to Redacted Source Selection Decision Document

The final rule requires DoD to provide the source selection decision document in certain circumstances, redacted to remove confidential and proprietary information of other offerors. For awards over $100 million, DoD must automatically provide the source selection decision during the debriefing. Small businesses and nontraditional defense contractors on procurements resulting in awards over $10 million and up to $100 million are also entitled to a copy of the decision but must specifically request it—the agency will not automatically provide it to offerors.

Foul but No Harm? Strict FAR Compliance Can Be a One-Way Street

Albert B. Krachman

Contractors and contractor teams competing for set-aside contracts should internalize the Federal Acquisition Regulation (“FAR”) compliance lesson imparted by a recent Government Accountability Office (“GAO”) protest decision related to small business set-aside procurements. In Kira Training Services, LLC, B-419149.3 (January 4, 2021) GAO illustrated that in the set-aside area, an Agency can violate a mandatory FAR provision, but a contractor cannot complain unless it takes timely proactive steps to protect itself from the government error. In Kira, GAO found that on a set-aside contract, the Navy violated the FAR by not sending the required pre-award list of intended awardees to all offerors, but the small business protester was not competitively prejudiced by the Navy error because it failed to protect itself by filing a post-award size protest.

The purpose of the pre-award notice on small business set aside contracts is to allow competitors to timely file size protests against proposed awardees who may not be an eligible small business. The regulations make it more advantageous for a bidder to challenge a competitor’s size before award, as opposed to post award, when an adverse size or status ruling may not prevent the government from proceeding with the challenged procurement even if the size protest is sustained.

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