A GAO bid protest was dismissed as premature because the protest was filed before a statutorily-required debriefing was held.

In a recent bid protest decision, the GAO determined that the protest was premature even though the required debriefing had been delayed pending the resolution of a SBA size protest.

The GAO’s decision in Professional Analysis, Inc., B-410202 (Aug. 25, 2014) involved a NAVFAC task order solicitation for support services.  After evaluating competitive proposals, NAVFAC awarded the task order to Spectrum Comm, Inc.

A competitor, Professional Analysis, Inc., requested a debriefing from the agency.  The agency acknowledged that the debriefing was required under the law, but informed PAI that the debriefing would be delayed until the SBA’s resolution of a size protest filed against Spectrum Comm.  Before the size protest was resolved, PAI filed a GAO bid protest.

NAVFAC requested that the protest be dismissed as premature because the debriefing had not yet occurred.  NAVFAC cited the GAO’s bid protest regulations, which state that the GAO will not consider a protest challenging a procurement conducted on the basis of competitive proposals where a debriefing is required if the protest is filed before the debriefing date.  PAI opposed the motion to dismiss, arguing that the timeliness rule was not applicable because the solicitation was a task order procurement, not a typical procurement conducted on the basis of competitive proposals.

The GAO wrote that when its timeliness rule was originally adopted, debriefings “were required for procurements conducted on the basis of competitive proposals.”  However, “[t]he statutorily required debriefing was later expanded to certain orders made under task or delivery orders, such as the one at issue here.”  The GAO continued:

The policies underlying this rule are equally applicable to statutorily required debriefings related to the placement of task and delivery orders.  Thus, we conclude that statutorily required debriefings under task and delivery orders are within the scope of the debriefing rule set forth in 4 C.F.R. 21.2(a)(2).  Consistent with this rule, PAI may raise any protest basis which is known or should have been known either before or as a result of the debriefing after the debriefing date offered to the protester, but not later than 10 days after the date on which the debriefing is held.

The GAO dismissed PAI’s protest as premature.

The Professional Analysis Inc. GAO bid protest decision demonstrates that a protest filed before a “required” debriefing will not be acted on by GAO.  However,  I cannot fault PAI for filing the protest when it did.  The rules regarding bid protest timeliness are often confusing, especially where task and delivery orders are involved.  A protest dismissed as premature–like PAI’s–can be refiled later, but a protest filed too late cannot be refiled.  In other words, when in doubt, it is often better to go ahead and file the protest.