Link: GAO Decision
Agency: Department of Labor
Disposition: Protest Dismissed.
- A debriefing provided pursuant to an architect-engineer procurement conducted under the Brooks Act, 40 U.S.C. §§ 1102-1104 (2006), does not fall within the exception to our general timeliness rules at 4 C.F.R. § 21.2(a)(2) (2010), because such a procurement is not a procurement conducted on the basis of competitive proposals, under which a debriefing is requested and, when requested, is required.
- Where the agency has not made a final determination concerning an alleged conflict of interest, a protest based on such an allegation is premature.
General Counsel PC Highlight:
McKissack-URS Partners, JV protested the agency’s selection of Parsons Infrastructure & Technology Group, Inc. as the firm with which to negotiate an architect-engineer (A/E) contract for architect and engineering design and construction management support services. A/E procurements are conducted according to the Brooks Act, as implemented by FAR subpart 36.6, whereby capable firms submit a Standard Form (SF) 330 detailing their qualifications, and an evaluation board prepares a selection report for the SSA ranking at least three firms considered to be the most highly qualified. The agency then conducts negotiations with the top ranked firm, but may proceed to lower-ranked firms should negotiations with the first fail. In this procurement, McKissack was among the short-listed firms selected for discussions; following its oral presentation, it was informed it was among the selected firms, but that Parsons had been selected for the initial contract negotiations. McKissack requested a debriefing the following day, and followed up its request two other times over the next two weeks. It had still not received a debriefing at the time it filed this protest.
The GAO first dismissed McKissack’s challenge to the qualification of the evaluation board as untimely, finding that McKissack was required to assert this claim within 10 days of knowing of the grounds for protest, rather than within 10 days of its “required” debriefing. The GAO found that the debriefing exception for does not apply to A/E procurements, as they are not competitions based on “competitive proposals.” The GAO then found untimely McKissack’s claims of conflicts of interest on the evaluation board, noting that the agency is currently investigating those claims and had not yet reached a conclusion.
Firms who participate in A/E procurements must remember that many of the procedures which apply to procurements conducted pursuant to FAR parts 13, 14, or 15 will not apply to their procurement. Firms must pay strict attention to deadlines, as they will not be eligible for the exception to the 10-day rule which applies to procurements based on “competitive proposals” where debriefings, if timely requested, are required. Furthermore, although FAR 36.607(b) requires debriefings in A/E Brooks Act procurements, the timeframe within which this debriefing must be completed is not specified.