GAO Considers Impact of Department of Defense Enhanced Debriefing Rights on Protest Timeliness Requirements

July 31, 2018

By Jacqueline K. Unger

In a recent GAO decision, State Women Corporation, B-416510 (July 12, 2018), GAO denied a protest as untimely after considering the impact of the Department of Defense’s (“DoD”) new enhanced post-award debriefing procedures (“Enhanced Debriefing Rights”) on GAO’s protest timeliness requirements.

As explained in a prior blog, since March 22, 2018, the DoD has required that, for post-award debriefings conducted in accordance with FAR 15.506(d), offerors be allowed to submit questions within two business days of receiving the debriefing. The debriefing is not considered to be concluded until the agency’s written responses are provided, which is supposed to occur within five business days of the agency’s receipt of the supplemental questions. The Enhanced Debriefing Rights also provide that a protester that submits supplemental questions can obtain an automatic stay under the Competition in Contracting Act (“CICA”) so long as its protest is filed within five calendar days after the agency responds to the supplemental questions.

In State Women Corporation, State Women Corporation (“SWC”) was an unsuccessful offeror that timely requested a post-award debriefing from the Army Corps of Engineers (“Corps”). The Corps provided a written debriefing, and SWC submitted supplemental questions the same day. The Corps responded to those questions four days later and stated in its response that “[t]he debrief is hereby concluded.” Despite this statement from the Corps, SWC submitted further questions to the Corps, and the Corps provided responses to the second set of questions twelve days later. SWC filed its protest four days after receiving the responses to its second set of questions.

GAO dismissed the protest as untimely because it was filed more than ten days after the protester’s receipt of the agency’s responses to its initial set of follow-up questions. GAO noted that, despite the Corps’ voluntary responses to SWC’s second set of questions, the Corps had unequivocally indicated that the debriefing was concluded after it provided the responses to SWC’s first set of questions, and the Enhanced Debriefing Rights did not entitle an offeror to multiple rounds of debriefing questions.

Because the Enhanced Debriefing Rights allow an unsuccessful offeror to ask supplemental questions (which thereby extend the debriefing period) only up to two business days following the debriefing, this case underscores the importance of getting written confirmation from the agency that the debriefing remains open if an unsuccessful offeror in a DoD procurement has further questions after receiving responses to its first round of follow-up questions. Likewise, any time an unsuccessful offeror in a non-DoD procurement (where the Enhanced Debriefing Rights do not apply) submits follow-up questions after a debriefing, the unsuccessful offeror would be wise to confirm the debriefing remains open while the questions are pending.

GAO also addressed the Corps’ argument that the Enhanced Debriefing Rules require that a protest be filed within five days of the conclusion of the enhanced debriefing. GAO rejected the Corps’ position, making clear that the Enhanced Debriefing Rules do not impact GAO’s timeliness rules—i.e., a protest following a required debriefing must be filed within ten days of the debriefing. Instead, the Enhanced Debriefing Rules create a new obligation for an agency to impose a CICA stay upon receipt of a protest filed within five days after the agency responds to the offeror’s supplemental questions. In other words, a protester has ten days after receiving the agency’s response to its supplemental questions to file its protest at GAO, but the protest must be filed within five days of receiving the agency’s response if a protester wants to ensure a CICA stay is imposed.

About the Author: Jackie Unger is an associate with PilieroMazza in the Government Contracts Group. She may be reached at junger@pilieromazza.com.
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