NDAA 2020 - Post-Award Explanations for Unsuccessful Offerors

The President has now signed the 2020 NDAA (National Defense Authorization Act). A 19 page summary of its key provisions prepared by the Senate Armed-Services Committee can be read or downloaded here. We have been discussing some of the procurement related provisions buried in the bill. So far we've discussed a new requirement for sole-source offerors to provide cost or pricing data it the Government determines that it is necessary to ensure fair and reasonable pricing, a requirement for GAO to study the extent to which DoD is awarding contracts when contractors refuse to provide adequate support, and the repeal of the Defense Cost Accounting Standards Board (DCASB).

Today we will continue the series with a new requirement concerning feedback to unsuccessful offerors. The provision reads, in part:

... FAR shall be revised to require that with respect to an offer for a task order or delivery order in an amount greater than the simplified acquisition threshold and less than or equal to $5,500,000 issued under an indefinite deliver-indefinite quantity contract, the contracting officer for such contract shall, upon written request from an unsuccessful offeror, 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.

There are several things to note here. First, the simplified acquisition threshold currently sits at $150 thousand but there is a FAR proposal on the table that will increase that threshold to $250 thousand. Second, the request must be in writing. It will take a little more than a phone call to get the contracting officer to act. Thirdly, only a "brief explanation" from the contracting officer is required. Don't expect a comprehensive report on the weaknesses found in your offer. Finally, don't expect a comparative analysis of your offers with other offers or with the winning offers. Only a summary of weak or deficient factors is required.

This could reduce the number of bid protests because sometimes, information secured through a bid protest is the only way for offerors to fully understand why they were not selected for a particular contract.