GAO Holds that Protest Was Late Despite Post-Debriefing Questions

Some contractors mistakenly believe that debriefings or post-debriefing questions always extend the deadline for filing a protest with GAO. In some cases they do, but in others they don’t. In cases where they don’t, a protester must file its protest within 10 days of knowing the basis for its protest. Otherwise, GAO will dismiss the protest as untimely, without any regards to the protest’s merits.

Let’s examine the sad tale of a recent protester in Centerra Integrated Facilities Services, LLC, B-418628 (Comp. Gen. April 23, 2020). In that procurement, the Bonneville Power Administration, a federal entity created to market hydroelectric power generated by a series of dams along the Columbia River, needed facilities management services. The solicitation contemplated the award of a single IDIQ contract to the offeror whose proposal represented the “best buy” taking into consideration price and three non-price evaluation factors. The procurement was not subject to the Competition in Contracting Act or the FAR. Instead, the Bonneville Project Act and the Bonneville Purchasing Instructions governed.

After evaluation, Bonneville awarded the contract to another firm. Bonneville notified the protester of its award decision on March 6 and noted that the protester could ask for a debriefing. The protester requested one, which Bonneville duly provided in writing on May 19. The debriefing noted that it would only conclude once Bonneville provided answers to protester’s questions. Those answers were provided on March 27.

When the protester filed its protest on April 1, Bonneville contended that it was untimely because it was filed more than 10 days after protester received Bonneville’s March 19 written debriefing. In Bonneville’s view, the debriefing was not required and, therefore, did not extend the time for filing a GAO protest.

Protester, on the other hand, argued the debriefing was required by the Bonneville Purchasing Instructions. Thus, the 10-day clock did not begin until after Bonneville answered the protester’s debriefing questions.

GAO agreed with Bonneville. GAO found that the debriefing, offered to protester by Bonneville, was not required under 41 U.S.C. 3704 because generally applicable federal procurement laws don’t apply to Bonneville under 16 U.S.C. 832a(f). And Bonneville could not point to any other statute, applicable to Bonneville, that required Bonneville to offer post-award debriefings. What is more, the Bonneville Purchasing Instructions (which protester heavily relied on) reflected a policy–not a statute or regulation–for debriefings. To GAO, this policy was not sufficient to render Bonneville’s debriefing “required” within the meaning of GAO’s protest regulations.

Even though protester filed its protest beyond the 10-day mark, it still argued that its protest was timely. Protester reasoned that the debriefing didn’t actually conclude until after Bonneville responded to protester’s debriefing questions. And because protester filed its protest within 10 of receiving answers to its those questions, the protest was timely.

In rejecting this argument, GAO recognized that “in several cases we have found that a debriefing was not concluded, and, therefore, the filing deadline under the debriefing exception was tolled, because the procuring agency had a legal obligation to address a party’s questions, voluntarily agreed to continue a required debriefing to address an offeror’s questions, or introduced ambiguity with respect to whether a debriefing had concluded.” But these cases all concerned a protest’s timeliness in the context of statutorily required debriefings. Here, Bonneville did not have an obligation to provide a statutorily required debriefing. So the protest was due within 10 days after the March 19 written debriefing. Because it was filed later, it was untimely.

Remember: a protester must file its protest within 10 days of when it knew or should have know the basis for its protest. Only required debriefings–those mandated by statute or regulation–extend the deadline. In those cases, the protest must be filed with 10 days of the debriefing’s conclusion. But before relying on this rule, investigate whether the debriefing in a procurement is a required one.