Are We Done Here? Filing Timely Bid Protests After a Written Debriefing
Experienced federal contractors know (or better know) that the deadlines for filing a protest at the Government Accountability Office (“GAO”) are short and are strictly enforced. When it comes to protests after the award of a contract, a disappointed offeror must file its protest within ten days of when the protester knew, or should have known, about the grounds that provide the basis for its protest.
GAO’s bid protest regulations provide an exception to these deadlines when a protester requests that the contracting agency provide it a debriefing if the debriefing is a required debriefing, as is the case under FAR 15.506 applicable to negotiated procurements under FAR part 15. Under 15.506 the debriefing only is required if the contracting agency receives the request “within 3 days after the date on which the offeror has received notification of contract award in accordance with 15.503(b).” Contracting officers may provide the debriefing “orally, in writing, or by any other method acceptable to” them. FAR 15.506(b).
Where a debriefing is required, GAO’s regulations provide that “[the] protest shall not be filed before the debriefing date offered to the protester, but shall be filed not later than 10 days after the date on which the debriefing is held.” 4 CFR §21.2(a)(2). Bear in mind that contracting officers have the discretion to provide debriefings that are not required—and many do. In such cases, the GAO exception for required debriefings is inapplicable meaning that a protest must be filed within the default 10-day deadline.
When a contracting officer furnishes a required debriefing in writing in response to the offeror’s request, one could say that the debriefing is offered and held at the same time. Does the issuance of a written debriefing mean that the debriefing is closed? It depends. At civilian agencies, the debriefing generally is concluded upon the issuance of the written debriefing; however, contracting officers at civilian agencies may hold the debriefing open to allow offerors to submit follow-up questions. In such cases, the contracting officer should clearly state when the debriefing will close so as to avoid any ambiguities that might arise if the agency and the offeror engage in a protracted dialogue.
Department of Defense (“DoD”) contracting officers must afford the offeror an opportunity to ask follow-up questions. DFARS 215.506-70(a). And the debriefing cannot be concluded until the contracting officer responds to timely follow-up questions submitted by the offeror after the debriefing or the date that the debriefing was issued if the offeror does not timely submit follow-up questions. DFARS 215.506-70(c).
Bottom line – contractors that want to protest a contract award must pay careful attention to their deadlines. In the case of written debriefings, contractors should devote careful attention to whether the debriefing has been concluded. In an ideal world, the contracting officer will state clearly whether the debriefing has concluded. Where there’s doubt, avoid arguments and assume the debriefing is closed.
This article focuses on the timeliness of protests in general and not on the timeliness of protests for obtaining an automatic stay of performance or award. That said, offerors that want an automatic stay must file their protests “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(c)(1). For DoD procurements, the automatic stay is applicable if notice of the protest is received within “5 days after a postaward debriefing under FAR 15.506 is concluded in accordance with DFARS 215.506-70(b).”SeeDFARS 233.104(c)(1)(D).