Under GAO’s bid protest regulations, a post-award protest must be filed within ten days from the time the protester knew or should have known the basis of the protest. However, if a protestor receives a “required debriefing,” then a protest must be filed within ten days after the date of the debriefing. A recent GAO decision highlights the importance of knowing whether the debriefing you receive is a “required” one under GAO’s bid protest regulations.
The Administrative Office of the United States Courts (“AOUSC”) issued a solicitation for drug analyzing equipment and supplies. The contract was awarded to Siemens Health Care Diagnostics on December 1, 2020. Microgenics received a debriefing on December 9 and then filed a protest on December 14.
Microgenics challenged the technical acceptability of Siemens’s proposal. The AOUSC argued that Microgenics’s protest was untimely. Microgenics claimed the protest was timely because it was filed within ten days of the debriefing.
GAO dismissed Microgenics’s protest challenging an award made by the Administrative Office of the United States Courts (“AOUSC”) as untimely after concluding that the debriefing exception to the timeliness rules did not apply. Although Microgenics filed a protest within ten days after receiving the debriefing, a debriefing only extends the protest deadline when the debriefing is “required” within the meaning of the debriefing exception in the GAO’s regulations. The GAO stated that “[t]he plain language of the statute clearly articulates that the provision applies to contracts awarded by ‘an executive agency.’ The AOUSC, a judicial-branch agency, is not bound by statutory requirements that apply only to executive-branch agencies.” In other words, the statutory provision requiring a debriefing did not apply to the AOUSC and the debriefing was not required. Therefore, because the debriefing was not required, it could not have extended the protest deadline
Alternatively, Microgenics argued that the debriefing was nonetheless “required” pursuant to the debriefing provisions set forth in the AOUSC Guide to Judiciary Policy. However, the GAO found that these provisions simply reflect AOUSC internal policy guidance and are therefore “insufficient to establish the debriefing at issue as a ‘required’ debriefing within the meaning of our regulations.” The GAO further stated that an agency’s compliance with its own internal policies and guidance (not contained in mandatory procurement regulations) is not a matter that it will review in a bid protest.
Thus, the deadline for Microgenics’s bid protest was ten days from the time the protester knew or should have known the basis of the protest. Microgenics’s claim that Siemens’s products failed to meet solicitation requirements was based on publicly-available information, not anything that Microgenics learned from the debriefing. GAO held that this challenge should have been raised within ten days of when Microgenics knew or should have known of the basis of protest—the December 1 award notice.
Microgenics also challenged the conduct of discussions, but the GAO concluded this challenge was an even more untimely protest. Microgenics alleged the AOUSC engaged in improper discussions when it requested specific information from Microgenics on how it would meet certain prescribed detection cut-off levels requirements and then issued an amendment that “clearly favored” Siemens. The AOUSC issued the amendment on November 23 to incorporate allowable alternative methods to meet the certain requirements. As part of the amended solicitation, the AOUSC requested that each offeror submit revised proposals by noon the following day.
Generally, timely challenges to solicitation amendments would have to be received before the revised proposals are due. However, Microgenics argued that it was “virtually impossible” to submit a protest by this deadline because it was only one day after the amendment was issued.
The GAO reasoned that in situations where there is not “reasonable time” to file a protest, a challenge to the propriety of the solicitation is due within ten days of when the protester knew or should have known of its basis for protest. Since Microgenics received the amendment on November 23, it was required to file its protest within ten days of receipt of the amendment. The fact that Microgenics may not have had reasonable time to file its protest by the following day did not permit Microgenics to wait until after receiving a post-award debriefing to file its protest. Instead, it was required to file its protest concerning the amendment within ten days of receiving the amendment. Thus, December 3 was the deadline and because Microgenics filed its protest on December 14, it was untimely.
Microgenics also argued that the debriefing exception applied to the solicitation issue as well, such that its challenge was timely. The GAO disagreed and ruled that the debriefing exception was inapplicable to the AOUSC procurement. Moreover, the GAO noted that the debriefing exception specifically states that it does not apply to any protest basis that “involve[s] an alleged solicitation impropriety covered by [4 C.F.R. § 21.2(a)(1)].”
In sum, the GAO concluded that Microgenics failed to raise its challenges in a timely manner pursuant to the GAO’s bid protest regulations and dismissed the protest.
GAO’s decision can be found at Microgenics Corporation, B-419470 (Feb. 2, 2021).
Aleksey House is a Senior Law Clerk at Berenzweig Leonard and a third-year law student at the George Washington University Law School, where she is pursuing a concentration in Government Procurement Law. To sign up for our monthly government contracts newsletters, please email [email protected].