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
DoD Enhanced Debriefing and the Automatic Stay: NIKA Offers Some Clarity but Leaves Open Questions
By now, many contractors are familiar with Department of Defense (DoD) Enhanced Debriefings. For those of you who followed along with our series on common bid protest mistakes, you might even remember that these enhanced debriefings can affect protest filing deadlines. Though the DoD deviation pertaining to enhanced debriefings has been around for over two years, the impact it can have on automatic stays has remained a bit muddled. A Court of Federal Claims case from earlier this year, NIKA Technologies, Inc. v. United States, clears up some of the confusion. Before diving into what NIKA teaches us, let’s do a quick refresher on protest filing deadlines in general, GAO automatic stay provisions, and what the DoD deviation permits.
Filing deadlines for protests vary depending on what type of protest it is. Under GAO regulations, a protest concerning alleged improprieties in a solicitation shall be filed prior to bid opening or the time set for receipt of initial proposals. All other protests must be filed no later than 10 days after the basis for the protest was known or should have been known. How do you know when your 10-day clock starts ticking? That can be a complicated question, and it often depends on whether a debriefing is “required.” If a debriefing is required, the filing deadline is 10 days after the debriefing. Keep in mind, however, that simply being “timely” is not enough to automatically stay the procurement. (A stay puts the entire procurement on pause while the protest is being litigated – it is a very helpful tool if you don’t want a competitor going forward with performance while you challenge their award). If you are filing at the GAO, you can obtain an automatic stay of performance pursuant to the Competition in Contracting Act (“CICA”), but only if the agency receives your protest within 5 days of your debriefing. (Note that there is no automatic stay at the Court of Federal Claims – you need to file for injunctive relief).
Issued in March of 2018, the Department of Defense (DOD) Class Deviation 2018-O0011 — Enhanced Post Award Debrief Rights provides that, for all post-award debriefings under FAR 15.506(d), DoD agencies must give unsuccessful offerors requesting and receiving a debriefing two business days after receiving the debriefing to ask any additional questions. A contractor’s 10-day protest deadline clock does not start ticking until it gets answers to the questions submitted to the agency. Similarly, the 5-day automatic stay clock does not begin counting down until a contractor receives answers to its questions. But what if a contractor gets the opportunity to ask questions, but doesn’t take that opportunity? Enter NIKA…
In NIKA, the contractor received a written debriefing from the US Army Corps of Engineers (“USACE”) on March 4, 2020. The debriefing letter explained (consistent with the DoD Enhanced Debriefing guidelines) that the contractor had two business days – or until March 6 – to submit additional questions. On March 7, the contractor advised USACE that it had no further questions. The contractor then filed a protest at the GAO on March 10, asserting its right to an automatic stay. USACE refused to stay the procurement, arguing that the contractor had filed its protest too late to trigger an automatic stay. More specifically, the agency argued that the contractor had had until March 9 – five days after March 4, the day when USACE originally provided the written debriefing – to file and receive the automatic stay. In contrast, the contractor argued that it had five days from March 6 – the end of the two-day question period – even though it did not avail itself of that period to ask questions. The contractor took its dispute to the Court of Federal Claims, and the Court agreed with the contractor.
The Court acknowledged that the applicable deadline for an automatic stay was “5 days after the debriefing date.” It then turned its analysis to which date constituted “the debriefing date” in this case. Was it March 4, the date the written debriefing was first provided? Or was it March 6, the end of the potential question period? As a threshold matter, the Court reasoned that the automatic stay provisions of 31 USC 3553 contemplated that the debriefing process could last more than one day. Moreover, the Court emphasized that the debriefing letter sent by USACE to the contractor stated that “[t]he [g]overnment will consider the debriefing closed if additional questions are not received within (2) business days. If additional questions are received, the [g]overnment will respond in writing within five (5) business days . . . [and] will consider the debriefing closed upon delivery of the written response to any additional questions.” The Court therefore reasoned that:
A plain reading of this statement provides two potential deadlines for the close of the debriefing: (1) if no additional questions were submitted, the debriefing would close after two days; and (2) if additional questions were submitted, the debriefing would close after the government provided written responses, no later than five days after receiving the questions. The letter gives no indication that the agency would consider the debriefing closed on the date it was received, that is, March 4, 2020.
Accordingly, the Court ruled, the “debriefing date” was March 6, and the contractor had 5 days from that date to file a protest triggering the automatic stay.
This is helpful guidance, to be sure, but it does leave open a couple of questions. Given the Court’s reliance on the particular wording of the agency’s letter, it is not clear whether the Court’s analysis would apply where an agency worded their debriefing letter differently. Our guess is that after this, agencies will try to alter the phrasing in their debriefing letters to close this gap. Moreover, the contractor in NIKA let the whole two-day question period run out before alerting the agency that it had no questions. If a contractor advises the agency upon receipt of a written debriefing, or even the following day, that it did not have any further questions, might that mark the end of the debriefing and start the clock ticking earlier? These questions have yet to be answered.
As always, when dealing with bid protest deadlines, the issues and analysis surrounding filing deadlines and automatic stay clocks are extremely nuanced and complicated. It is important to contact a legal professional as soon as you think you have a potential protest issue so you can ensure compliance and preserve your protest rights. If you have questions about bid protests, debriefings, or the automatic stay, the Obermayer team is here to help.
The information contained in this publication should not be construed as legal or medical advice, is not a substitute for legal counsel or medical consultation, and should not be relied on as such.