Protester Must Wait for Conclusion of Extended Debriefing to Protest, Says GAO

As those familiar with government contracts are undoubtedly aware, ensuring a bid protest is timely filed with GAO is a paramount consideration. GAO takes a particularly dim view of protests not filed in accordance with its timeliness regulations, which can encourage parties to file a protest as quickly as possible. As GAO recently explained, however, in the context of extended debriefings, there is such a thing as filing too soon.

Celeris Systems, Inc., B-416890 (Comp. Gen. Oct. 11, 2018), involved a task order procurement by the Navy for various support services. Celeris—the incumbent contractor—timely submitted a proposal in response to the task order solicitation but was not selected for award. Celeris promptly requested a debriefing from the agency.

As relevant here, debriefings conducted by DoD agencies have become much more involved this year. We previously blogged on Section 818 of the 2018 NDAA, which substantially increased the amount of information DoD agencies were to provide to unsuccessful offerors during the debriefing process. To this end, DoD issued a class deviation in March of this year requiring contracting officers to provide an opportunity for unsuccessful bidders to submit questions following the debriefing. These are the so-called “enhanced debriefing” procedures required by the 2018 NDAA.

Since it submitted a bid in response to a Navy procurement, Celeris was to receive an enhanced debriefing. The debriefing began on September 24, and Celeris subsequently submitted questions to the Navy on September 26. Then, on September 28, Celeris filed its protest with GAO. Importantly, the Navy had not yet provided responses to Celeris’s September 26 debriefing questions when Celeris filed its protest.

The Navy subsequently moved to dismiss Celeris’s protest. According to the Navy, since Celeris had not received responses to its debriefing questions, its debriefing was not concluded; therefore, the Navy argued, Celeris’s protest was subject to dismissal as premature. Celeris replied that the Navy’s delay in responding to questions should not impede its ability to protest the procurement or obtain an immediate performance suspension.

GAO agreed with the Navy. As GAO explained “we consider a protest to be premature until the conclusion of the entire debriefing process, so as in other circumstances, we will also dismiss a protest filed before completion of the extended debriefing process[.]” Additionally, with respect to Celeris’s arguments about preserving its protest rights, GAO explained that its debriefing timeliness policy was designed to “encourage early and meaningful debriefings and to preclude strategic or defensive protests.” As such, “[t]he potential effect on an agency’s ability to commence or continue performance of the awarded contract . . . during the extended debriefing process (or from the protester’s perspective, its entitlement to a stay of performance), must be considered secondary to the policy interests identified above, which require the dismissal of a protest filed before the completion of a debriefing.” Cerleris’s protest was dismissed as premature.

Enhanced debriefings are a new feature of contracting with DoD customers. While enhanced debriefings do provide substantially more information, they also take longer to complete. As Celeris discovered, enhanced or not, GAO will not consider a protest until a debriefing is concluded. As such, Celeris will need to wait for its questions to be answered and the debriefing to close before it may refile its protest for GAO consideration.