Option to “Postpone” Required Pre-Award Debriefing Until After Award—Gain Information, But Lose Right to Protest.

GAO’s bid protest window for debriefings—which closes 10 days after the required debriefing—knows very few exceptions. But what if the agency offers you a more informative post-award debriefing in place of the pre-award debriefing normally required upon your elimination from the competitive range? This option will likely improve your ability to compete for future contracts with the agency. Shouldn’t you be able to accept it without giving up your right to protest? GAO says no.

GAO’s recent decision in Loc Performance Products, Inc., B-417431 (Comp. Gen. April 22, 2019), involved an Army solicitation for armor hardware, turret systems, and platform integration kits. During evaluations, Loc was excluded from the competitive range. After award, Loc filed a protest alleging that the awardee’s affirmative responsibility determination and the Army’s overall evaluation were improper.

The Army first notified Loc of its exclusion on September 11. Loc requested a pre-award debriefing the same day. In response, the Army offered Loc a post-award debriefing alternative, because “different information would be available” at that time. And Loc accepted (thereby declining the pre-award debriefing). On February 7 the following year, Loc learned of the contract’s award and again requested a debriefing, which the Army provided on March 22. Five days later, Loc filed its bid protest with GAO.

The Competition in Contracting Act requires a pre-award debriefing if requested by the offeror within three days of the notice of exclusion. GAO’s timeliness rules require offerors to protest within ten days of when they first knew or should have known the basis for protest—or within ten days of a required debriefing.

Because Loc filed within ten days of its debriefing—where it first learned of its specific bases for protest—it claimed its protest was timely. But, in its decision, GAO found that Loc’s debriefing was not a “required debriefing” under the law—and therefore, Loc’s protest was untimely.

GAO explained that CICA “specifically addresses the issue of when agencies are required to give post-award debriefings to offerors excluded from the competitive range”—when the offeror requested but was refused a pre-award debriefing. According to GAO, Loc’s post-award debriefing was not “required” because Loc “was offered and declined a required pre-award debriefing.” So, the default rule applied; Loc had to protest within ten days of its exclusion from the competition—when it first knew of the protest grounds.

Regarding the Army’s offer of the post-award debriefing option, GAO reasoned:

[O]ur Office has consistently concluded that a protester may not passively await information providing a basis for protest; rather, a protester has an affirmative obligation to diligently pursue such information, and a protester’s failure to utilize the most expeditious information-gathering approach may constitute a failure to meet this obligation. In this respect, we have specifically concluded that where, as here, a protester elects to delay a required pre-award debriefing, the protester has failed to diligently pursue any protest grounds which the protester would have discovered in that pre-award debriefing.

In addressing Loc’s arguments, GAO distinguished this case from those in which the unsuccessful offeror did not secure the required debriefing but “diligently pursued the matter,” regardless. GAO stated that its reasoning

does not suggest that protesters may not file protests on the basis of information learned in non-required debriefings, but rather concludes narrowly that a protester fails to diligently pursue its protest when it declines to receive a required pre-award debriefing, and instead waits until after award to receive a debriefing. In effect, a protester should have known, prior to award, about any grounds of protest that it would have discovered had it requested a required pre-award debriefing.

In GAO’s opinion, Loc could’ve learned of the alleged evaluation errors in the pre-award debriefing but “did not diligently pursue those protest grounds.” Thus, Loc’s claims regarding its own evaluation were dismissed as untimely. GAO also dismissed as untimely Loc’s challenge to the affirmative responsibility determination for the awardee—but, for another reason. This allegation only concerned publicly available information about the awardee. So, according to GAO, Loc knew of this ground when it first learned of the contract award, but did not allege it within ten days of that date.

Ironically, the Army really might’ve been trying to help Loc out here: offering a more thorough debriefing and more inclusive information (both regarding Loc’s elimination and the ultimate basis for selection of the awardee). This truly was an attractive—though somewhat deceiving—option, considering the highly competitive world of government contracting. Unfortunately, a close review of the bid protest regulations (even for potential issues with the Army’s atypical offer) may have protected Loc’s right to protest. Instead, Loc realized the hard way that reliance on an agency’s seemingly helpful offer is simply not a substitute for ensuring full compliance with GAO’s timeliness rules.