Enhanced Debriefing Rights Don’t Impact the Timeliness Rules for Bid Protests
By: Olesya Sidorkina
Published Date: August 20, 2018
The most popular forum for filing a bid protest is the Government Accountability Office (“GAO”). However, pursuing post-award protests with GAO requires strict compliance with specific time periods in which to file a protest. GAO’s timeliness rules require that a protest be filed not later than 10 days after the basis of protest is known or should have been known. 4 CFR § 21.2(a)(2). One exception to this timeliness rule is when a required debriefing under FAR Part 15 is requested. In such cases, any protest must be filed not later than 10 days after the date on which the debriefing is provided. If the protester wants the automatic stay, however, the protest must be filed and the agency notified of the protest not later than 5 days after the debriefing.
The exception to the GAO’s timeliness rules becomes more complex when the Enhanced Postaward Debrief Rights (“Enhanced Debriefing Rights”) come into play. The Department of Defense’s Class Deviation 2018-O0011-Enhanced Post Award Debrief Rights allows an unsuccessful bidder an opportunity to submit additional questions related to the debriefing within two business days after receiving the debriefing. The procuring agency must respond to the questions in writing within five business days after receiving the questions. The Enhanced Debriefing Rights specify that the agency shall not consider the postaward debriefing to be concluded until the agency delivers its written responses to the unsuccessful offer.
A recent GAO decision clarified when a post-award debriefing is concluded and the deadline for filing a protest begins to run. In State Women Corp., B-416510, 2018 CPD ¶ 240 (July 12, 2018), GAO held that State Women Corporation’s (“SWC”) protest was untimely when SWC failed to file its protest within ten days of being told by the agency that the debriefing was closed.
On May 28th, SWC received a written debriefing from the USACE in which the USACE invited SWC to submit questions in accordance with the Enhanced Debriefing Rights. SWC submitted its questions on May 28th and the USACE responded on June 1st. The USACE’s response stated that the debriefing was concluded. Rather than file a protest, on June 8th SWC submitted additional questions to the USACE. Although it was not obligated under the Enhanced Debriefing Rights to respond to SWC’s second set of questions, the USACE responded on June 20th. On June 24th, SWC filed a protest with GAO.
The USACE moved to dismiss the protest as untimely. The issue before GAO was whether the additional debriefing questions submitted by SWC on June 8th extended the time for filing a bid protest. GAO held that they did not. GAO found that the Enhanced Debriefing Rights did not impact the timeliness rules established by the GAO’s Bid Protest Regulations. Since SWC did not allege that the protest was based on new information learned from the response to the second set of debriefing questions, the only question was whether the debriefing reasonably remained open after the USACE’s June 1st response. GAO concluded that the debriefing did not remain open given that the USACE unambiguously stated that the debriefing was concluded in its June 1st response. Therefore, any protest had to be filed within 10 days of June 1st.
The State Women Corp. decision is a stark reminder that the fact that the protester continues to ask questions after a debriefing is closed does not extend the time for filing a bid protest based on information provided during the debriefing.