Maria is a partner and the Chair of the Government Contracting department. She focuses her practice exclusively on federal government contracting and procurement, guiding her clients throughout the entire lifecycle of their...Read More by Author
Avoiding Common Bid Protest Mistakes, Part 2: The Riddle of the “Required” Debriefing
Because it’s bid protest season, the GovConExaminer team is putting together a series of posts dealing with the most common protest mistakes. Last week, we posted about the confusion over pre-award protests. This week, we will be talking about required debriefings, and their impact on post-award protest deadlines before the Government Accountability Office (“GAO”).
Debriefings are a great way to gather information about a source selection decision, and help you evaluate the potential benefit of asserting a bid protest. Most contractors are familiar with post-award debriefings. However, many contractors have misconceptions about debriefings, and more specifically, about the effect that debriefings have on protest deadlines. This can cause these contractors to miss GAO filing deadlines, and lose their protest rights. If you want to avoid this scenario, you need to understand the general GAO guidelines concerning protest deadlines, and you need to ask the following questions:
- What types of debriefings might extend my protest deadline?
- Is a debriefing required for this procurement?
- How do I timely request a required debriefing?
The GAO regulations lay out the deadlines for filing different types of protests. As discussed in last week’s post, pre-award protests that challenge the terms of a solicitation must be filed before the deadline for bid/proposal submission. All other protests should be filed no later than 10 days after the basis of the protest is known or should be known, except for “protests challenging a procurement conducted on the basis of competitive proposals under which a debriefing is requested and, when requested, is required,” which should be filed 10 days after the debriefing. So, what does this mean in non-legalese? Well, let’s break it down, remembering that for today, we’re focusing on post-award protests only (we’ll be talking about these regulations in the context of competitive range protests later in this series).
Practically speaking, for most procurements, “no later than 10 days after the basis of the protest is known or should be known” means no later than 10 days after the award is made to your competitor. (Note that this may be true whether you individually received a specific notice of award, or not). The sole exception to this rule is for procurements involving a required and requested debriefing, which should be filed no later than 10 days after that debriefing. And this is exactly where a lot of contractors make their mistake. Many contractors believe that their protest deadline is 10 days from their debriefing, no matter what. But the 10-day protest clock starts ticking from the date of a debriefing (as opposed to the date of award) only if the debriefing was both required and timely requested. Accordingly, to ensure compliance with filing deadlines, you need to make sure that (1) you know whether a debriefing is “required,” and (2) you timely request your required debriefing.
Which leads us to the big question: When are debriefings required, and when are they not required?
Not Required: Debriefings are not required for GSA Schedule Procurements under FAR Part 8, for Commercial Item Procurements under FAR Part 12, for Simplified Acquisition Procurements under FAR Part 13, or for Sealed Bidding Acquisitions under FAR Part 14. Note, however, that for FAR Part 8 and FAR Part 13 procurements in which award was made based at least partially on non-price evaluation factors, while a “debriefing” is not required, the agency is required to provide “a brief explanation of the basis for the award decision.”
It is important to understand that, just because the agency agrees to give you a debriefing, it does not necessarily mean a debriefing was, technically speaking, “required,” or that the debriefing you receive has any impact on your protest deadline. Similarly, a “brief explanation” under FAR parts 8 or 13 does not constitute a debriefing, and does not impact the normal rule concerning protest deadlines.
Required: Most importantly, debriefings are required for any competitive procurement under FAR Part 15 (Contracting by Negotiation). Currently, debriefings are also required for any task or delivery order over $5.5 million under FAR 16.505(b)(6) (but note that the NDAA 2020 mandates that these regulations be revised to require debriefings for any task/delivery order over the simplified acquisition threshold).
If a debriefing is indeed required, the question then becomes when you need to request your debriefing to be considered timely.
Which leads us to our second critical question: How do I timely request a required debriefing? Post-award debriefings need to be requested within three (3) days of the date the contractor receives notice of award. Usually, that notice arrives in the form of an “unsuccessful offeror letter.” So, if you get such a notice, please, don’t sit on it! Request your debriefing quickly, and in writing. Be aware that an agency may decide to give you a debriefing even if you are late in requesting it. But don’t be lulled into a false sense of security – if you were late in requesting the debriefing, it likely does not extend your protest deadline.
As you can see, determining whether your debriefing was required, when to request your debriefing, and how your debriefing impacts your protest filing deadline can be a complex matter. It may be further complicated if you do not know what section of the FAR is applicable to the procurement at issue. Or by the fact that there are now different debriefing rules that apply to DoD procurements, which further effect protest filing timelines (stay tuned for more on that later in the series!). Or by the fact that certain agencies fail to provide proper unsuccessful offeror notices. For that reason, it is best to engage a legal professional as soon as you think you have a potential protest, so they can advise you on the appropriate course of action.
If you have questions about debriefings or post-award protests, you can check out our recent GovConExaminer Live! Webinar on Asserting Bid Protests, or give us a call. And, of course, remember to stay tuned for more common bid protest mistakes in the upcoming weeks!
The information contained in this publication should not be construed as legal advice, is not a substitute for legal counsel, and should not be relied on as such. For legal advice or answers to specific questions, please contact one of our attorneys.