While losing a procurement is never easy, many contractors will learn some valuable lessons from a debriefing. On top of that, a debriefing can delay bid protest filing deadlines at GAO. However, recently, GAO clarified that the bid protest filing deadline delay for debriefings only applies to GAO protests. A protestor found this out the hard way after a pre-award debrief, and multiple protest actions.
Given the importance that debriefings (or debriefs, for short) hold for contactors to determine areas to improve, possible bid protest grounds, and bid protest deadlines, we have written about them many times. There is our Back to Basics post on the topic, and, relevant to this case, we even have a post on pre-award debriefs affecting deadlines. If this post piques your interest, we highly recommend these and our other posts to learn more about debriefs. That being said, this case provides a great opportunity for a quick review of pre-award debriefs, and GAO’s filing rules.
GAO’s bid protest filing regulations state that protests based on a solicitation’s terms must be filed “prior to bid opening or the time set for receipt of initial proposals.” For any other protests, they must be “filed not later than 10 days after the basis of the protest is known or should have been known.” However, GAO built in an exception for debriefings. The regulations state, when there is a competitive procurement in which “a debriefing is requested and, when requested, is required,” then the protest will not be filed “before the debriefing date offered to the protester” and not later than “10 days after the date on which the debriefing is held.” What this means is that in most cases, for a GAO bid protest, if a contractor is allowed a debrief under the solicitation, and if requested the agency has to give it, then the GAO bid protest deadline clock does not start until the debrief is given. Note, this is separate from the deadline to file to get a stay of award, which applies if a GAO protest is filed “within 5 days after a debriefing date offered to the protester for any debriefing that is required by 15.505 or 15.506.” FAR 33.104.
That being said, there are some oddities regarding pre-award debriefs that could affect filing deadlines. If a contractor is offered a pre-award debrief after being excluded from the competitive range, there is an option to delay the debrief until after the award to get more information through a post-award debrief. This will get contractors more information about their evaluation, but critically, GAO has held that if a contractor chooses to postpone the pre-award debrief until post-award for more information, the contractor actually loses its right to protest. Also, the DoD has enhanced debriefs. which could allow for more information and push a GAO bid protest filing deadline out further, but the DoD’s enhanced debrief rules only apply to post-award debriefs.
In NikSoft Systems Corporation, B-421801 (Comp. Gen. Aug. 16, 2023), GAO examined how a pre-award debrief affects (or in this case doesn’t affect) agency-level bid protest deadlines. On June 15th, 2023, NikSoft received notice that it was excluded from the competitive range for the subject procurement. NikSoft requested a pre-award debrief (debrief that occurs when excluded from competitive range before award). The debrief was received by NikSoft on June 30th, with the option of supplying questions on the debrief by July 5th. On July 6, NikSoft sent an email to the agency stating it disagreed with the weaknesses identified, and rebutted the agency’s evaluation. As this email was sent over 10 days after June 15th, the Agency treated this email as an agency-level protest, and deemed it untimely under the FAR agency level protest deadline of 10 days after notice of adverse action. On July 7th, NikSoft sent an email to the Agency that it labeled as an agency-level protest. The agency treated this second email as an appeal of the decision to treat the July 6th email as an agency-level protest. The agency’s senior procurement officer denied this appeal. NikSoft then filed a protest with GAO stating that the agency did not reasonably evaluate its proposal, and the exclusion of the proposal was improper. GAO dismissed this protest for being untimely.
In its dismissal, the GAO focused on filing deadline requirements. As a general matter, GAO holds that a matter that was initially filed with an agency will be seen as timely “only if the agency protest was filed within the time limits provided by [GAO],” unless the agency places a “more stringent time for filing.” In that case, GAO will honor the agency’s filing requirements.
GAO stated that the initial notice of exclusion sent to NikSoft on June 15th provided “sufficient information to inform the protester of its bases of protest” and the protester was required to file a protest within 10 days of June 15th. NikSoft in the GAO bid protest argued it waited for the debrief to be concluded before filing any protest. But GAO states in this decision “the debriefing exception established in our Bid Protest Regulations” for protest timeliness is “inapplicable to agency-level protests, which are governed by the timeliness rules in the FAR.” This is the lynchpin of GAO’s decision.
The delay of a filing deadline because of a debrief is exclusive to GAO, and the agency, relying on the FAR, had a more stringent filing deadline. Thus, if a protester wants to file an agency-level protest, the FAR’s 10-day filing deadline applies, and has no exceptions for debriefs. A contractor cannot keep asking questions or delay a protest to seek more facts to fill out a protest. And if the contractor files an agency level protest before going to GAO, that protest must be timely under the agency’s rules (if those rules are more restrictive).
This case has made some things clear to the contracting community: 1) contractors must be sure to start the proverbial protest deadline clock as soon as the notice of exclusion from award is received, if they plan to do an agency level protest; 2) contractors must be careful about how communications with the agency are worded, as an agency may treat it as a agency-level protest; 3) Debriefs will only effect bid protest filing deadlines, if the bid protest is filed at GAO. Given this complicated web of filing deadlines, it is important not hesitate about reaching out to federal government contracting lawyers as soon as possible if you find yourself excluded from award or a competitive range. That will allow you to fully discuss the various filing deadlines, exceptions, and forums for a potential protest. If not, you run the risk of a dismissal and missing your chance to fully state your case.
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