The U.S. Court of Appeals for the Federal Circuit’s recent decision in Nika Technologies, Inc. v. United States, reversed a decision by the Court of Federal Claims (COFC) and provided important clarification regarding the timeliness rules for obtaining a stay of contract performance in post-award protests to the Government Accountability Office (GAO).
Generally, an agency is required to stay contract performance if it receives a post-award bid protest from the GAO within five calendar days after the agency gives the protester a required debriefing. Under the Department of Defense’s (DoD) statutory enhanced debriefing process, a debriefed offeror is permitted to submit follow-up questions to the agency in writing within two days after the debriefing. If the offeror submits the written questions within the two-day period, the offeror’s filing deadline for securing the stay of performance becomes five calendar days after the agency provides the offeror written responses to its timely questions.
In Nika Technologies, the protester received a required debriefing in a procurement subject to the DoD enhanced debriefing protocols, did not submit follow-up questions, and filed a protest with the GAO six days after its written debriefing. When the agency did not impose an automatic stay of performance of the awarded contract, the protester sought an injunction at the COFC.
At the COFC, the protester argued that the two-day period for submitting follow-up questions extends the debriefing period, even if the offeror does not submit follow-up questions to the agency. The protestor argued that the automatic stay must be implemented for any bid protest filed within seven days of the start of the debriefing (five days plus the additional two days permitted for follow-up questions).
To illustrate, the protestor received the required debriefing on March 4, 2020, therefore the deadline to submit any post-debriefing questions was March 6, 2020. On March 10, 2020, it filed a protest with the GAO—four days after the deadline to submit questions and six days after the date on which it received its debriefing. According to the protester, its five-day clock did not begin to run until March 6, 2020.
The COFC agreed with the protestor and reasoned that the additional two-day period essentially extends the debriefing period by two days, regardless of whether the offeror ultimately submits follow-up questions. Therefore, because the protester filed its GAO protest within five days of March 6, the COFC held that it was entitled to the stay of performance.
The Government appealed the decision to the Federal Circuit.
The Federal Circuit reversed the lower court’s holding. The court focused on the plain language of the underlying enhanced debriefing statute, 31 U.S.C. § 3553(d)(4)(A)(ii), and held that the two-day period for follow-up questions does not extend the debriefing if the contractor does not submit any questions. In other words, the debriefing is only extended if a debriefed offeror submits follow-up questions within the two-day period after the debriefing.
The Federal Circuit concluded that a protester’s five-day clock for filing a protest begins to run on the day of the debriefing, even in a DoD extended debriefing, and only stops if the protester submits timely written questions to the agency within two days. In this situation, the protester’s five-day clock resets and begins to run again once the agency provides the written responses to the protester’s timely follow-up questions.
This decision only applies to DoD procurements covered by the enhanced debriefing statute. It is important to note that there is no automatic right to reset protest clocks by submitting follow-up questions under other procurements.
Lastly, Nika Technologies makes clear that these deadlines are strictly enforced. Federal contractors must be diligent and timely file a GAO protest to obtain an automatic stay.
Stephanie Wilson is a Partner and Co-Director of Government Contracts at Berenzweig Leonard, LLP. Stephanie can be reached at [email protected]. Stephanie thanks Aleksey House, our law clerk from George Washington University Law School, for her assistance on this article.