United States Government Accountability Office

Washington, DC 20548

Comptroller General

of the United States

 

Decision

Matter of: McKissack-URS Partners, JV 

File: B-406489.2; B-406489.3; B-406489.4

Date: May 22, 2012 

Joseph J. Dyer, Esq., Bennett D. Greenberg, Esq., and Joshua C. Drewitz, Esq., 

Seyfarth Shaw LLP, for the protester.

William Novak, Esq., Paul F. Khoury, Esq., and John R. Prairie, Esq., Wiley Rein 

LLP, for the intervenor.

Dennis Adelson, Esq., David R. Koeppel, Esq., Colin W. O'Sullivan, Esq., 

Department of Labor, for the agency.

Eric M. Ransom, Esq., and Edward Goldstein, Esq., Office of the General Counsel, 

GAO, participated in the preparation of the decision.

DIGEST

1. 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. 

2. Where the agency has not made a final determination concerning an alleged 

conflict of interest, a protest based on such an allegation is premature.

DECISION

McKissack-URS Partners, JV, protest the final selection by the Department of Labor 

of Parsons Infrastructure & Technology Group, Inc. as the firm with which to 

negotiate an architect-engineer (A/E) contract under solicitation No. 

DOL111RP20406, for architect and engineering design and construction 

management support services. 

We dismiss the protest. 

Generally, A/E procurements, such as the one at issue in this protest, are 

conducted pursuant to special procedures established by the Brooks Act, 40 U.S.C. 

§§ 1102-1104 (2006), as implemented in Federal Acquisition Regulation (FAR) 
Page 2 B-406489.2 et al. 

subpart 36.6, rather than the procedures prescribed in FAR parts 13, 14, or 15. 

FAR § 36.601-3. Under the “competitive procedures”1 established by FAR Subpart 

36.6, the agency does not issue a solicitation, and competing firms do not submit 

proposals or quotations. Rather, the agency issues a notice in FedBizOpps inviting 

capable firms to submit a Standard Form (SF) 330, “Architect-Engineer 

Qualifications” statement. FAR § 36.603(b). The agency then convenes an A/E

evaluation board to review the submitted A/E qualifications statements, and holds 

discussions with at least three of the highest rated firms. FAR §§ 36.602-2, 36.602-

3. The board ranks the firms, and prepares a selection report for the source 

selection authority (SSA) recommending, in order of preference, at least three firms 

considered to be the most highly qualified. FAR § 36.602-3. In turn, the SSA 

makes a “final selection,” which consists of the SSA’s listing, in order of preference, 

of the most highly qualified firms. FAR § 36.602-4. 

Throughout this evaluation process, firms do not submit price information--the 

Brooks Act process effectively eliminates price from the competition—and instead 

the competition is based entirely on the firms’ capabilities and qualifications. 

Powerhouse Design Architects & Engineers, Ltd., B-403174 et al., Oct. 7, 2010, 

2010 CPD ¶ 240 at 2 n.2. Following the evaluation, all firms listed in the final 

selection are considered “selected firms” with which the agency may then negotiate 

a contract. FAR § 36.602-4. If the agency is not able to negotiate a satisfactory 

contract at a fair and reasonable price with the most preferred firm, the agency 

enters into negotiations with the next-ranked selected firm, and so on. FAR 

§ 36.606.

Here, McKissack submitted an SF 330 qualifications statement in connection with 

this procurement, and was one of the shortlisted firms that the agency selected for 

discussions. McKissack was then invited to make an oral presentation to the “oral 

presentation evaluation board” on February 7. On February 27, the SSA made the 

final selection. McKissack was among the selected firms, however, Parsons, not 

McKissack, was ranked as the most-preferred firm. On February 28, the agency 

informed McKissack that Parsons had been selected for the initial contract 

negotiations. McKissack requested a debriefing from the agency on February 29, 

and repeated its request on March 2 and March 13, however, the debriefing was not 

forthcoming. McKissack then filed this protest on March 26. 

McKissack states that it filed this protest “as a protective measure,” and is not 

withdrawing its request for, or waiving its right to, a debriefing and to file a protest 

within ten days of receiving such a debriefing. In its protest, McKissack argues that 

 1 The FAR establishes Brooks Act procedures as a “competitive procedure.” FAR 

§ 36.601-2 and FAR § 6.102(d)(1).
Page 3 B-406489.2 et al. 

the agency is required to provide it with a debriefing,2 that Parsons’ employment of 

a consultant associated with the agency created an improper conflict of interest, that 

the oral presentation evaluation board was tainted by conflicts of interest and did 

not meet the required experience standards set forth in the FAR,3 and finally, that 

the evaluation of McKissack’s qualifications statement was unreasonable. We 

conclude that McKissack’s challenge to the qualifications of the oral evaluation 

board is untimely where it knew the qualifications of the board on February 7, that 

its allegations regarding conflicts of interest are premature where the agency has 

undertaken an investigation, and that its challenge to the evaluation is speculative, 

where without a debriefing, McKissack has no specific information about the 

evaluation of its qualifications. 

Concerning the timeliness of McKissack’s challenge of the board’s qualifications, 

our Bid Protest Regulations require that protests not based upon alleged 

improprieties in a solicitation:

shall be filed not later than 10 days after the basis of protest is 

known or should have been known (whichever is earlier) with the 

exception of protests challenging a procurement conducted on the 

basis of competitive proposals under which a debriefing is 

requested and, when requested, is required. In such cases, with 

respect to any protest ground basis which is known or should have 

been known either before or as a result of the debriefing, the initial 

protest shall not be filed before the debriefing date offered to the 

protester, but shall be filed no later than 10 days after the date on 

which the debriefing is held. 

 2 FAR § 36.607(b) states in relevant part that “[d]ebriefings of successful and 

unsuccessful firms will be held after final selection has taken place.” We agree with 

McKissack that FAR § 36.607(b) requires the agency to provide McKissack with a 

debriefing, however, we note that FAR subpart 36.6 does not specify the timing of 

such a debriefing and an agency's failure to provide a debriefing is not an issue that 

we generally will consider because the scheduling of a debriefing is a procedural 

matter that does not involve the validity of an award. Barnesville Dev. Corp., 

B-400049, June 30, 2008, 2008 CPD ¶ 132 at 5. Thus, to the extent McKissack is 

protesting the agency’s failure to schedule a debriefing, this aspect of the protest is 

also dismissed.

3 In this regard, FAR § 36.602-2 specifically requires that A/E evaluation boards be 

“composed of members who, collectively, have experience in architecture, 

engineering, construction, and Government and related acquisition matters. 

Members shall be appointed from among highly qualified professional employees of 

the agency or other agencies, and if authorized by agency procedure, private 

practitioners of architecture, engineering, or related professions.” 
Page 4 B-406489.2 et al. 

4 C.F.R. § 21.2(a)(2) (2010). McKissack asserts that its challenge to the 

qualification of the evaluation board is not untimely because the debriefing it is due 

pursuant to FAR § 36.607(b) is a “required” debriefing within the meaning of our 

timeliness regulations and, therefore, it should have the right to file a protest 

concerning any aspect of the procurement other than challenges to the solicitation, 

such as its challenge to the qualifications of the evaluation board, within 10 days of 

the date it receives its debriefing.4 We disagree, and conclude that the timeliness 

exception in our Bid Protest Regulations does not apply to debriefings provided in 

the context of an A/E Brooks Act procurement, and that McKissack was required to 

file its challenge within ten days of the date it knew or should have known the basis 

for its protest. 

The debriefing exception in our timeliness regulations applies only to protests 

challenging a procurement conducted on the basis of “competitive proposals” under 

which a debriefing “is requested and, when requested, is required.” 4 C.F.R. 

§ 21.2(a)(2). The term “competitive proposals” is not defined by our Bid Protest 

Regulations, nor is it expressly defined by statute or regulation. Rather, it has been 

coined a “term of art.” Systems Plus, Inc. v. United States, 68 Fed. Cl. 206, 209-

210 (2005) (holding that a procurement under the Federal Supply Schedule 

program, pursuant to FAR Subpart 8.4 was not conducted on the basis of 

competitive proposals). We conclude that an A/E competition conducted pursuant 

to the procedures established by the Brooks Act and FAR Subpart 36.6 does not 

constitute a competition based on “competitive proposals,”5

 4 We note that the protester’s interpretation of the timeliness regulations would 

result in the current protest being dismissed as premature, because it was filed prior 

to the debriefing date offered to the protester. However, as stated above, 

McKissack has apparently filed this “protective protest” in part to seek clarification 

on this timeliness issue. 

and that the exception 

in our timeliness rules does not apply. 

5 McKissack contends that our Office should adopt a more expansive interpretation 

of the term “competitive proposals” in order to advance the policy consideration 

underlying the debriefing exception, which is to allow firms, such as McKissack, to 

receive a debriefing before deciding whether or not to file its protest. While it is true 

that a more expansive interpretation of our regulations would further the policy goal 

underlying the timeliness exception, our understanding of the term “competitive 

proposals” is not without bounds. Rather, it is properly understood with the 

statutory and regulatory framework in which it is used, and from which it was 

ultimately derived. See 61 Fed. Reg. 39039-01 (July 26, 1996) (explaining that the 

timeliness rule was adopted to comport with the statutory debriefing and stay 

provisions of the Federal Acquisition Streamlining Act of 1994 (FASA), Pub. L. 103-

355, 108 Stat. 3243 (1994), which only apply to procurements conducted on the 

basis of “competitive proposals”).
Page 5 B-406489.2 et al. 

 

In reaching this conclusion, we consider that our Office has previously determined 

that the use of negotiated procedures in accordance with FAR Part 15--as 

evidenced by the issuance of a request for proposals--is the hallmark of a 

procurement conducted on the basis of competitive proposals.6 See The MIL 

Corp., B-297508, B-297508.2, Jan. 26, 2006, 2006 CPD ¶ 34 at 6 (citing, e.g., 

Peacock, Myers & Adams, B-279327, Mar. 24, 1998, 98-1 CPD ¶ 94); see also, 

Rhonda Podojil--Agency Tender Official, B-311310, May 9, 2008, 2008 CPD ¶ 94 at 

3 (holding that A-76 competition, where the agency issued a solicitation for 

“proposals” and expressly invoked FAR 15 procedures, was conducted on the basis 

of competitive proposals for the purposes of the application of the debriefing 

exception to our timeliness regulations). Where a procurement is not conducted 

pursuant to these procedures, we have held that the procurement was not one 

conducted on the basis of competitive proposals, and that the exception to our

timeliness rules does not apply. See The MIL Corp., supra (holding that 

procurement conducted pursuant to FAR Subpart 8.4, rather than FAR Part 15, was 

not conducted on the basis of competitive proposals). 

The procurement at issue in this case was not conducted pursuant to FAR Part 15 

procedures, but under the Brooks Act and FAR Subpart 36.6. As noted above, 

these procedures do not provide for the issuance of a solicitation, the preparation of 

proposals, the submission or prices, or other hallmarks of a FAR Part 15 

competition. In fact, in selecting the most qualified firms on the basis of A/E

qualification statements under the Brooks Act, FAR Part 15 procedures are 

expressly not applied pursuant to FAR § 36.601-3(b).7

 Accordingly, an A/E

procurement under FAR subpart 36.6 does not share the characteristics of the FAR 

Part 15 procurements that we consider to be conducted on the basis of “competitive 

proposals.”

Additionally, we find FAR § 6.102 instructive in its separation of Brooks Act 

procedures from “competitive proposals.” FAR § 6.102 describes the “Use of 

 6 Consistent with our understanding in this regard, we have noted that FAR 

§ 6.401(b), “Competitive Proposals” begins with a reference, “See Part 15 for 

procedures.” See The MIL Corp., supra, at 6 n.4. 

7 To the extent the protester argues that the term “competitive proposals” should be 

understood to apply to A/E procurements since FAR § 36.607 adopts some of the 

debriefing procedures of FAR Part 15, we find the argument misplaced. This 

specifically limited adoption of FAR Part 15 procedures does not otherwise negate 

the overarching construct of the FAR, which clearly establishes the A/E

procurement procedures as separate from those established under FAR Part 15, 

and which expressly categorize A/E contracting procedures as distinct from those 

based on “competitive proposals.” See FAR § 6.102 and related discussion infra. 
Page 6 B-406489.2 et al. 

Competitive Procedures” under the FAR. FAR § 6.102(b) is entitled “[c]ompetitive 

proposals,” while FAR § 6.102(d) is entitled “[o]ther competitive procedures.” These 

sections expressly carve out procurements conducted pursuant to the Brooks Act 

and FAR Subpart 36.6 from the category of competitions based on “competitive 

proposals.” Instead, procurements under FAR Subpart 36.6 are specifically 

highlighted as a form of “other competitive procedures.” 8

In sum, because we conclude that the debriefing due to McKissack under FAR 

§ 36.607 is not a debriefing in a “procurement conducted on the basis of 

competitive proposals under which a debriefing is requested and, when requested, 

is required,” the exception for such debriefings in our Office’s timeliness regulations 

does not apply, and McKissack was required to file any protest other than a 

challenge to the terms of the solicitation within 10 days after the basis of protest is 

known or should have been known. Where McKissack knew the qualifications of 

the individuals on the evaluation board at the time of the oral evaluation on 

February 7, was informed of Parson’s selection as the most highly rated firm on 

February 27, but did not file its protest until March 26, the protest is untimely and 

must be dismissed.9

 8 Similarly, FAR Part 15 draws a distinction between the procedures to be used for 

“competitive proposals” versus the procedures to be used for “other competitive 

procedures.” Specifically, FAR § 15.502 states in full: 

This subpart applies to competitive proposals, as described in 

6.102(b), and a combination of competitive procedures, as 

described in 6.102(c). The procedures in 15.504, 15.506, 15.507, 

15.508, and 15.509, with reasonable modification, should be 

followed for sole source acquisitions and acquisitions described in 

6.102(d)(1) and (2).

9 McKissack filed a supplemental protest on May 7 alleging that the “evaluation 

board” lacked the qualifications required by FAR § 36.602-2. McKissack argues 

that while its challenge to the composition of the “oral presentation evaluation 

board” may be untimely, its challenge to the “evaluation board” is timely because 

the agency stated on April 25 that the “oral presentation evaluation board” was also 

the entire evaluation board. McKissack argues that it could not have known before 

April 25 that there was only one evaluation board. We disagree. McKissack’s initial 

protest reflects McKissack’s knowledge that, what it characterizes as an “oral 

presentation evaluation board,” was the entity that evaluated McKissacks 

qualifications under the solicitation. Because McKissack provides no basis to 

reasonably support a belief that the agency may have used multiple evaluation 

boards, and such a belief by itself is inconsistent with FAR Part 36.602-3 

“Evaluation board functions,” describing the functions of a singular evaluation board, 

the agency’s confirmation of the singular evaluation board cannot reasonably be 

viewed as “new facts” giving rise to a new basis for protest. 
Page 7 B-406489.2 et al. 

Turning to McKissack’s allegations concerning conflicts of interest, during the 

course of the protest, the agency informed our Office that it had initiated an 

investigation into the alleged conflicts of interest, that the investigation had not 

concluded, and that the agency would not make an award until the investigation 

was complete. In this context, our Office has concluded that since the agency has 

not made a final determination concerning the conflict of interest issue, a protest 

based on such an allegation is premature, and will not be reviewed at this time.10 

See Government Bus. Servs. Group, B-287052 et al., March 27, 2001, 2001 CPD 

¶ 58 at 12. 

Finally, with regard to McKissack’s allegation that its qualifications were improperly 

evaluated, since it has not yet received a debriefing, it has no detailed information 

concerning its evaluation, and essentially assumes that no properly conducted 

evaluation could have ranked another offeror higher than itself. Our Bid Protest 

Regulations, 4 C.F.R. § 21.1(c)(4) and (f) (2011), require that a protest include a 

detailed statement of the legal and factual grounds for the protest, and that the 

grounds stated be legally sufficient. These requirements contemplate that 

protesters will provide, at a minimum, either allegations or evidence sufficient, if 

uncontradicted, to establish the likelihood that the protester will prevail in its claim of 

improper agency action. Id.

In this case, McKissack’s challenge to the evaluation does not include sufficient 

information to establish the likelihood that the agency in this case violated 

applicable procurement laws or regulations. The protest therefore is dismissed 

without further action. See Bid Protest Regulations, 4 C.F.R. § 21.5(f).

The protest is dismissed. 

Lynn H. Gibson

General Counsel

 10 McKissack filed a supplemental protest on May 14 alleging that the agency, 

during a conference call on this protest, made comments “implicitly suggesting” that 

a conclusion on the OCI issues had been reached. We dismiss this supplemental 

protest as premature. Until the protester has documentation of the agency 

investigation’s conclusions or the agency moves forward with award, the OCI issues 

are not for review by this Office.