Debriefing Exception to Protest Timeliness Rule Doesn’t Apply to SBIR Procurements, Period

Equitus Corporation was sure it was following the right procedures when it requested a debriefing after receiving a letter stating its proposal under an Air Force Small Business Innovation Research (SBIR) solicitation had been rejected. The Air Force even provided the debriefing as requested, and Equitus filed a protest less than 10 days later. However, they made an easy-to-miss but crucial error that resulted in dismissal of their protest.

In Equitus Corp., B-419701 (May 12, 2021) the Air Force issued a solicitation under the SBIR program . This program is established and governed by 15 U.S.C. § 638. The Solicitation itself consisted of two phases. Equitus had made it through the first phase, and, after submitting a proposal for the second phase, was informed that it was the “tentative selection for an award” dependent upon further review. Things were looking good for Equitus.

However, on March 10, 2021, after conducting evaluations, the Air Force sent Equitus a letter informing them that it would be inappropriate to fund Equitus’ proposal because it lacked the innovativeness required to satisfy the definition of research and development (R&D). Equitus requested a debriefing, and the Air Force quickly responded with a debriefing on March 16. Nine days later, Equitus filed a protest with GAO.

The Air Force responded that the protest was untimely as it was filed more than 10 days after Equitus received the letter informing them of the rejection, as that was when “Equitus knew or should have known of the basis of protest.” Equitus argued “that it did not learn its basis of protest until receiving the debriefing” and so the protest, being filed nine days later, was timely.

GAO noted that, for protests not based on alleged improprieties in a solicitation, the rule is a protester must file within 10 days after the protestor knew or should have known of the basis for its protest. 4 C.F.R. § 21.2. An exception is when a protest challenges “a procurement conducted on the basis of competitive proposals under which a debriefing is requested and, when requested, is required.” In that case, the protest must be filed with 10 days of the debriefing. This means Equitus was in the clear, right?

In the words of the great Lee Corso: “Not so fast, my friend!” SBIR procurements, GAO explained, are conducted pursuant to 15 U.S.C. § 638. Those procurements aren’t “competitive proposals”, and so there is no debriefing exception, as was found in a similar prior case, Global Aerospace Corp., B-414514 (July 3, 2017). This is based on FAR 6.102 , which describes “competitive proposals” separately from what are called “other competitive procedures.” As this latter group is described separately from “competitive proposals”, and the debriefing exception says it applies to “a procurement conducted on the basis of competitive proposals”, this exception must not apply to procurements using “other competitive procedures.”

Equitus’s own protest stated it was addressed towards the Air Force’s “misinterpretation of what is and is not R&D” and a lack of understanding of the R&D required for the project. This issue was based on the March 10 letter, which stated that the rejection of Equitus’ proposal was over R&D considerations. As the debriefing exception did not apply, the question was when Equitus knew or should have known of the basis of protest. That day was March 10. Equitus’s protest was untimely, and it was dismissed.

GAO’s decision confirms the understanding of debriefings for SBIR procurements as a whole. The debriefing exception does not apply to these procurements. GAO also noted that this rule applies all to procurements for basic and applied research conducted pursuant to a broad agency announcement under FAR part 35, Federal Supply Schedule pursuant to FAR subpart 8.4, and architecture-engineer contracts under the Brooks Act, 40 U.S.C. § 1102.

The type of solicitation a government agency uses is a much bigger deal than many contractors realize.  Entirely different statutes and regulations can apply or not apply on the basis of that choice alone. You should never ignore such designations. What seems like mere formalities can end up costing you severely in the long run if you’re not careful.

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