The Brooks Act, Debriefings, and GAO Bid Protests

Remember 80s band Nu Shooz?  No?  Even if the name doesn’t right a bell,  I can almost guarantee that you’ve heard the band’s one hit, “I Can’t Wait.”   Go on, take a listen on YouTube, and you’ll see that  I’m right.

While you are busy bopping to that slice of 80s retro-ness, it’s worth knowing that “I Can’t Wait” is the rule when it comes to GAO bid protests based on architect and engineering procurements conducted under the Brooks Act.  According to a recent GAO decision, unlike with a typical competitive procurement under FAR Part 15, an unsuccessful offeror cannot wait to file a GAO bid protest regarding matters of which it is already aware until after it receives a debriefing.  Wait until after the debriefing, and the GAO might dismiss the protest as untimely–just like it recently did in the case of one unlucky protester.

The GAO’s decision in McKissack-URS Partners, JV, B-406489.2; B-406489.3; B-406489.4 (May 22, 2012), involved a Department of Labor architect and engineering services procurement conducted under the Brooks Act and its implementing regulation, FAR Subpart 36.3.   On February 7, 2012, the Joint Venture made an oral presentation to the agency’s presentation board.  On February 28, the agency informed the Joint Venture that it had entered negotiations with a competitor.

The following day, the Joint Venture requested a debriefing.  It repeated its request on March 2 and March 13, but was not debriefed.  On March 26, the Joint Venture filed a GAO bid protest arguing in part that the oral presentation board was tainted by conflicts of interest.

The GAO dismissed this aspect of the protest as untimely.  It wrote that the Joint Venture knew, or should have known, of the issue no later than February 7, when it made the oral presentation.  At that point, the Joint Venture had ten days to file its GAO bid protest.  The protest, which came weeks later, did not meet the 10-day requirement.

The GAO rejected the Joint Venture’s argument that it was entitled to take advantage of a commonly-used exception to the timeliness rules.   This exception provides that when a procurement is conducted on the basis of “competitive proposals” and a debriefing is “required” by law and timely requested by a disappointed offeror, that offeror may wait until after the debriefing to file its GAO bid protest.

One might expect that the rule applied to the Joint Venture.  After all, FAR Subpart 36.3 does require debriefings, and the Joint Venture had timely requested one.  Nevertheless, the GAO held that the exception does not apply because Brooks Act procurements under FAR Subpart 36.3 are not procurements based on “competitive proposals.”  Rather, the GAO seemed to say, only procurements conducted under FAR Part 15 are procurements based on “competitive proposals,” and only FAR Part 15 procurements trigger the timeliness exception.

One can quibble with the GAO’s underlying legal rationale, but following the McKissack-URS Partners, JV decision, the rule is clear: when it comes to Brooks Act procurements, a debriefing does not extend the time in which to file a GAO bid protest if the information upon which that protest is based is already known (or should be known).  To paraphrase our one-hit wonder friends Nu Shooz, “you can’t wait.”

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