Unsuccessful Awardee Notification

I. Background

DoD, GSA, and NASA are proposing to revise the FAR to implement section 874 of the National Defense Authorization Act (NDAA) for Fiscal Year (FY) 2020 (Pub. L. 116–92) which, for task orders or delivery orders exceeding the simplified acquisition threshold (SAT) but not greater than $6 million, requires contracting officers to provide, upon written request from an unsuccessful offeror, a brief explanation as to why the offeror was unsuccessful, including the rationale for award and an evaluation of the significant weak or deficient factors in the offeror’s offer Section 874 of the NDAA uses the term ‘‘unsuccessful offeror.’’ FAR 16.505 uses the term ‘‘unsuccessful awardee’’. Both terms are synonymous; referring to an entity who has been awarded a basic contract but has been unsuccessful for the award of an order competed under the basic contract. Since the term ‘‘unsuccessful awardee’’ is already used and understood by the acquisition community, the term will be used to implement the requirement.

FAR 16.505(b)(6) requires contracting officers to notify unsuccessful awardees when the total price of a task order or delivery order exceeds $6 million. If the $6 million threshold is met, contracting officers are directed to the procedures at FAR 15.503(b)(1) and FAR 15.506 when providing a postaward notification or postaward debriefing, respectively.

The FAR threshold at 16.505 is currently $6 million as a result of two inflation adjustments in accordance with FAR 1.109. FAR Case 2014–022 published on July 2, 2015, at 80 FR 38293 and 2019–013 published on October 2, 2020, at 85 FR 62485 each raised the threshold by $500,000 from the $5 million reflected at 41 U.S.C. 4106(d).

II. Discussion and Analysis

The proposed rule implements the requirement for contracting officers to, upon written request from an unsuccessful awardee, provide a brief explanation as to why the awardee was unsuccessful for a task order or delivery order exceeding the SAT but not exceeding $6 million. While the statutory threshold is $5.5 million, this rule is imposing these debriefing requirements at the higher $6 million threshold to align with the current threshold at FAR 16.505(b)(6). This avoids a gap between $5.5 million and $6 million. This new debriefing requirement for orders above the SAT and below $6 million does not provide a debriefing at the level of detail currently afforded to unsuccessful awardees over $6 million, however, this information is expected to benefit entities by improving future offers. While not expressly required by the statute, the proposed rule adds a postaward notification requirement for the applicable task orders and delivery orders to ensure unsuccessful awardees are provided an opportunity to obtain the debriefing information in a timely manner