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Agency’s Failure to Provide an Offered, but Not Required, Debriefing Does Not Extend Unsuccessful Offeror’s Deadline for Filing a Bid Protest

by | Jan 22, 2020 | Government Contracts

A recent GAO decision reaffirms that an agency’s alleged failure to comply with debriefing requirements is a procedural matter not considered by GAO. This decision also highlights why an unsuccessful offeror should be aware of the situations in which a debriefing is actually required by the FAR, as opposed to voluntarily offered by the agency, as the debriefing exception to GAO’s timeliness rules only applies to required debriefings.  

The Air Force issued a request for quotations (RFQ) with the intent to establish multiple basic ordering agreements (BOAs) with qualified vendors. The RFQ stated that quotations would be evaluated under two factors, technical capability and portfolio review, and vendors would be considered for award if they received ratings of capable or higher under the technical capability factor and good or higher under the portfolio review factor. 

Trillion ERP Venture Tech, LLC (“Trillion”) submitted a quotation in response to the RFQ. The agency evaluated Trillion’s portfolio review factor as acceptable, which was lower than good. On November 1, 2019, the agency informed Trillion that it was eliminated from further consideration. 

Trillion requested a debriefing on November 4. The next day, the agency informed Trillion that, because the procurement was conducted under FAR 16.703, no debriefing was required; however, the agency stated that it would nevertheless accommodate the request with either a pre-award debriefing or a post-award debriefing after the agency established BOAs with the successful offerors. Trillion notified the Air Force on November 6 that it wanted a pre-award debriefing. The agency did not respond.

On November 15 – fourteen days after Trillion learned it was excluded from the competition – Trillion filed a protest with GAO. Trillion raised two grounds of protest; first, that the agency failed to provide a required debriefing, and second, that the agency should have assigned Trillion a good, rather than acceptable, rating for the portfolio review factor.

The Air Force filed a request for dismissal, arguing that the protest was untimely and that the challenge to the failure to provide a debriefing was legally and factually insufficient, because GAO does not review the conduct of debriefings. 

GAO agreed with the agency and dismissed both grounds of Trillion’s protest. As to Trillion’s assertion that the agency failed to provide a required debriefing, GAO noted that an agency’s failure to provide a debriefing is a procedural issue that is not within GAO’s jurisdiction. GAO also disagreed with Trillion that FAR Part 16’s silence on debriefing provisions meant that the FAR Part 15 debriefing requirements applied. .

GAO then dismissed Trillion’s second protest ground, challenging the evaluation of its proposal, as untimely. Under GAO’s rules, a protest based on other than alleged improprieties in the solicitation must be filed not later than 10 days after the protestor knew or should have known of the basis for its protest. Although Trillion attempted to obtain a debriefing to learn more about the agency’s evaluation of its proposal, the Air Force never provided any information beyond its November 1 notification letter. Therefore, Trillion’s challenge to the agency’s evaluation of its proposal was necessarily based on the information it received in the November 1 letter, and any challenge must have been filed within 10 calendar days of that letter. 

As this decision illustrates, an agency’s failure to comply with debriefing requirements is neither a ground for a bid protest, nor a justification for not complying with GAO’s protest filing deadlines. If you have any questions about when a debriefing is required or GAO’s protest deadlines, we welcome the opportunity to discuss these issues in more depth with you.

Stephanie Wilson is a Partner at Berenzweig Leonard, LLP. She and Terry O’Connor lead the firm’s Government Contracts practice. Stephanie can be reached at [email protected].