Avoiding Common Bid Protest Mistakes
Mistake 3: Failing to Act When Excluded from the Competitive Range.
Solution: Understanding the Competitive Range, and When You Must Act to Preserve Protest Rights.
In our last post we talked about contractor’s obligation to act early to protest errors in the solicitation. In this post, we tackle another bid protest scenario in which contractors must – but often fail to – act before award. More specifically, today we are talking about the steps a contractor must take when they want to protest their exclusion from the competitive range.
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. So let’s start at the very beginning, with the question “what is the competitive range?”
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 based on initial submissions alone. 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 then proceed to the next stage of source selection, where they will have discussions with the agency, and ultimately 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. They will no longer be in the running for award.
Many contractors excluded from the competitive range make their mistake at this exact stage: They believe that they should wait until the final award decision is made before challenging the agency decision. 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 certain obligations on behalf of the contractor, if that contractor wants to protest.
Remember that, if the agency has established a competitive range, you are dealing with FAR Part 15 procedures. Also remember that debriefings are required for FAR Part 15 procurements (more on required debriefings here. 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 three days of receiving your notice of exclusion from the competitive range.
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, as explained in more depth here). 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, and must be analyzed on a individual basis.
As you can see, competitive range debriefings and protests can be a tricky area to navigate. If you are unsure of where you stand, it is always best to contact a legal professional.