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Posted on Tuesday, August 14, 2018

“Voluntary” Enhanced Debriefings Cannot Extend GAO Deadlines

An unsuccessful offeror recently learned that, although an agency can voluntarily give unsuccessful offerors debriefing information that is more than what the debriefing rules require, doing so does not change the GAO deadlines that a protester must meet.

The protest involved the DoD Enhanced Debriefing Rights. Unsuccessful offerors in DoD solicitations under FAR Part 15 generally have the right to submit questions to the government for 2 days following a debriefing. The agency then has 5 days to respond. When the agency responds and announces the end of the debriefing, a protester has 10 days to file a GAO protest. As we will see, however, the deadline to get an automatic stay of contract performance is different.

The State Women Corporation (SWC) of Kabul, Afghanistan lost a DoD FAR Part 15 solicitation and asked for an enhanced debriefing. As allowed by the enhanced debriefing rules, SWC sent DoD additional questions after the debriefing and the agency responded to those questions on June 1, also telling SWC that the debriefing had ended.

Perhaps believing that there is no harm in asking for more, SWC sent the government more questions on June 8. Although the government did not have to respond, it voluntarily did so on June 20.  On June 24, SWC filed a GAO protest.

GAO dismissed the protest for being late. Under GAO’s bid protest regulations, SWC’s post-award protest had to be filed within 10 days after the government told SWC the enhanced debriefing had ended on June 1.

Although the agency was nice enough to answer SWC’s second batch of debriefing questions, neither FAR nor the enhanced debriefing rules entitle an offeror to multiple rounds of questions. The agency’s voluntary second-round response did not extend GAO’s protest deadline, which was June 10.

GAO’s decision also pointed out a critical distinction:  the Enhanced Debriefing Rules impacted not the GAO deadline for filing a timely bid protest but rather the FAR deadline for obtaining the automatic stay. The Enhanced Debriefing Rules provide that, if an unsuccessful offeror submits additional debriefing questions, the agency shall impose the automatic stay of contract performance upon receipt of a protest filed with GAO within 5 days after the government delivers its written response to the unsuccessful offeror’s additional questions and declares the enhanced debriefing over.

The government had ignored this “protest deadline-stay deadline” distinction in arguing that SWC’s protest had to be filed by June 6, five days after the June 1 close of the debriefing. In denying the government’s argument, GAO pointed out that the Enhanced Debriefing Rules have no impact on GAO’s 10-day protest deadline.

DoD’s March 22, 2018 Agency Memorandum clarifies that DoD vendors who want to get the automatic stay of contract performance must file a protest with GAO by the later of:

(1) 10 days after the date of contract award;

(2) 5 days after a FAR Part 15 debriefing, if no additional questions related to the debriefing are submitted; or

(3) 5 days after the government delivers its response to additional questions ending an enhanced debriefing.

This decision shows how the complex debriefing rules can lead protesters to file late protests. It also shows how important it is to strictly comply with these rules because failing to do so will be fatal to an unsuccessful offeror’s chances of successfully staying performance of the awarded contract.

State Women Corporation, B-416510, July 12, 2018.

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Terry O’Connor is a Partner at Berenzweig Leonard. Terry and Stephanie Wilson lead the firm’s Government Contracts practice. Terry can be reached at toconnor@berenzweiglaw.com.