We are often contacted by a contractor soon after the company learns that its proposal was not selected for award, with the contractor is considering whether to file a bid protest. When a contractor is deciding whether or not to file a protest at the Government Accountability Office (“GAO”), one of the first questions that needs to be asked is whether a debriefing is required. Although that question seems straightforward, the determination can be complicated.
You may be wondering why it matters whether a debriefing is required. The primary reason is that it affects when a protest would be due at GAO. GAO’s regulations state that protests (with the exception of protests based on alleged improprieties in a solicitation):
Shall be filed not later than 10 days after the basis of protest is known or should have been known (whichever is earlier), with the exception of protests challenging a procurement conducted on the basis of competitive proposals under which a debriefing is requested and, when requested, is required. In such cases, with respect to any protest basis which is known or should have been known either before or as a result of the debriefing, the initial 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.
In simple terms, this means that if a debriefing is required, and the disappointed offeror requests the debriefing, a protest is not due until 10 days after the debriefing. Note: If a debriefing is required, the protest must be filed within five days of the debriefing to obtain a stay of performance. Alternatively, if an offeror waits to protest until after receiving a debriefing that was not required, and protests more than 10 days after award, the protest may be dismissed as untimely.
In addition to tolling the clock, obtaining a debriefing can be incredibly useful when contemplating and preparing a protest because it may inform a disappointed offeror of protest grounds, such as an unreasonable evaluation or flawed best value tradeoff analysis. But how do you know if a debriefing is required? The answer depends on the type of procurement, as shown in the table below.
|Procurement Type||Required Debriefing|
|Federal Supply Schedule under FAR Part 8||No. Offerors are only entitled to a brief explanation of award, and only if requested.|
|FAR Part 12–Commercial Items||No. Offerors are only entitled to a brief explanation of award, and only if requested.|
|FAR Part 13–Simplified Acquisitions||No. Offerors are only entitled to a brief explanation of award, and only if requested.|
|FAR Part 15–Negotiated Procurements||Yes, and must be requested within three days of award.|
|Multiple Award Contracts under FAR Part 16||Sometimes. Required if requested within three days of award for orders that exceed $5 million. For orders less than $5 million, no debriefing is required.|
Unfortunately, it can be difficult to decipher which procurement type an agency is operating under. The disappointed offeror letter may cite provisions of FAR Part 15–even if it is not a FAR Part 15 procurement. And, an agency may allow offerors to request debriefings even when debriefings are not required.
Importantly, the provision of a debriefing does not affect the GAO protest filing deadline unless the debriefing is required. To further confuse matters, an agency may utilize procedures from multiple FAR parts in a single procurement. Contractors need to know that using FAR Part 15 procedures (i.e., discussions) does not necessarily mean that a debriefing is required. To cut through this confusion, the best places to look are the synopsis, the standard form attached to the solicitation, and the evaluation criteria. It may be useful to have legal counsel review the solicitation documents.
The answer to the question of whether a debriefing is required is not always clear, but it may have significant consequences.
About the author: Michelle Litteken is an associate with PilieroMazza in the Government Contracting and .Litigation law groups. She may be reached at email@example.com.