NDAA Requires Contracting Officers to Provide Information to Unsuccessful Offerors for Task and Delivery Orders Valued Under $5.5 Million

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The FY 2020 NDAA mandates the FAR be revised to require Contracting Officers to provide the rationale for award and other information to unsuccessful offerors for task or delivery orders.

TAKEAWAYS

  • Currently, FAR Part 16 only requires a debriefing be provided for task and delivery orders valued over $5.5 million.
  • The FY 2020 NDAA requires FAR Part 16 be revised to require that Contracting Officers provide information to unsuccessful offerors on contracts above the Simplified Acquisition Threshold but below $5.5 million.
  • This new information could prove invaluable for contractors hoping to gain insight and improve their proposals for future opportunities.

The annual National Defense Authorization Act (NDAA) has long been used to impose government-wide procurement reforms. The recently enacted NDAA, signed by President Trump on December 20, 2019, continues this practice, by requiring agencies to provide unsuccessful offerors on smaller dollar task or delivery orders above the Simplified Acquisition Threshold an explanation as to why their proposal was unsuccessful as well as the rationale for the award.

Currently, agencies are not required to provide debriefings to unsuccessful offerors on FAR Part 16 task or delivery orders smaller than $5.5 million, leaving many contractors with no explanation as to why their offers were not successful. Section 874 of the FY 2020 NDAA requires that Federal Acquisition Regulation (FAR) 16.505(b)(6) be amended to provide that, upon request by an unsuccessful offeror, the Contracting Officer on a contract above the Simplified Acquisition Threshold and less than $5.5 million shall “provide a brief explanation as to why such offeror was unsuccessful that includes a summary of the rationale for the award and an evaluation of the significant weak or deficient factors in the offeror’s offer.”

Although offerors on such contracts will not be able to bring a formal protest at the GAO, as these contracts fall below the $10 million jurisdictional threshold for task orders, the additional information could still be valuable for contractors. Most practically, gaining insight into any potential significant weaknesses or deficiencies will allow the contractor to learn from any proposal mistakes and improve their proposals for future opportunities. Additionally, should the contractor feel they have been treated unfairly, or a mistake has been made by the agency, the disappointed offeror will have more information to provide to the agency ombudsman for informal resolution.

While the regulations required by the NDAA must still be implemented, the new requirement to provide this information for smaller valued task and delivery orders procured under FAR Part 16 will assist contractors seeking to improve their proposals.

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DISCLAIMER: Because of the generality of this update, the information provided herein may not be applicable in all situations and should not be acted upon without specific legal advice based on particular situations.

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