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
NIKA Overturned! The Federal Circuit Takes a Different View on Enhanced Debriefings
Followers of this blog will know that debriefings and protests (and more precisely, a debriefing’s potential impact on protest filing deadlines) are a common topic here at GovConExaminer. That’s mostly because the interplay between debriefings and protests is so vital to understand if you want to succeed in this industry. Last year, as part of our series on common bid protest mistakes, we blogged about how required and timely debriefings can impact deadlines, and also about the DoD Enhanced Debriefing Deviation in general. Last summer, we blogged about NIKA Technologies, Inc. v. United States – a case in which the Court of Federal Claims (COFC) provided some additional clarity regarding the DoD Enhanced Debriefing Deviation. Well, turns out, on appeal, the Federal Circuit didn’t quite agree with what COFC had to say. Last week, the Federal Circuit issued its decision in NIKA, overturning the previous COFC ruling. Before diving into the specifics of the Federal Circuit’s opinion, let’s do a quick recap on the applicable law, and on the background of the NIKA case.
As many of you will remember from previous posts, bid protest filing deadlines differ, depending on what type of protest is being filed. Under GAO regulations, a protest concerning alleged improprieties in a solicitation must 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. When a debriefing is both required and timely requested, that ten-day deadline starts ticking when the debriefing has concluded. But what if the contractor wants a stay? (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 if the agency receives your protest within 5 days of the conclusion of your debriefing (or within 10 days of award).
So what do enhanced debriefing rights have to do with any of this? Well, in 2018, the government issued the Department of Defense (DOD) Class Deviation 2018-O0011 — Enhanced Post Award Debrief Rights, providing 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. The debriefing is not considered “concluded” until the contractor receives answers to those questions. In other words, as a practical matter, the 10-day protest deadline clock and the 5-day automatic stay clock do not start ticking until a contractor receives answers to its questions. What the DoD deviation did not address, however, was whether there was any impact on deadlines if the contractor got the opportunity to ask questions, but didn’t take advantage of that opportunity. That is the question that the Court of Claims was addressing in its NIKA Decision.
In that case, the contractor received a written debriefing (which also explained the contractor’s enhanced debriefing rights), on March 4, 2020. On March 7, the contractor advised the agency that it had no further questions and on March 10, the contractor filed a protest, asserting its right to an automatic stay. The Agency refused to stay the procurement, arguing that the contractor had filed its protest too late to trigger an automatic stay. In the agency’s view, the contractor had only had until March 9 – five days after the agency 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 period allowed for questions – even though it did not actually ask any questions.
COFC agreed with the contractor. You can read our coverage of that decision here, but in effect, the Court of Federal Claims equated the end of the potential question-asking period (i.e. 2 business days after the original debriefing) with the “conclusion” of the debriefing, and therefore ruled that the contractor was entitled to a stay. On appeal, the Federal Circuit took a much different view.
In the Federal Circuit’s view, this was a simple matter of clear statutory interpretation. The Court held that the plain meaning of the statute indicated that the clock starts to run on the date the contractor receives a debriefing. The Court reasoned that “[w]hile the statute mandates a two-day opportunity to ask questions, it mandates it ‘after… debriefing,’ which means that the two-day period for questions occurs within the five-day window for filing a protest.” The Court acknowledged that, when there are additional questions submitted, “[t]he agency shall not consider the debriefing to be concluded until the agency delivers its written responses.” In contrast, the Court concluded, “…when there are no additional questions submitted…the debriefing period is not held open.” Accordingly, the Court held that “the plain meaning of the statutory scheme is that when no additional questions are submitted, the ‘debriefing date’ is simply the date upon which the party receives its debriefing.”
So what does this mean for you? It means that you should ALWAYS take advantage of your right to ask additional questions in an enhanced debriefing (and really, in any debriefing). But, if for some reason you fail to ask questions, pay attention to your deadlines! The 5-day clock starts ticking the day of the original debrief, not at the end of the potential question-asking period 2 days later. And, while the NIKA case addressed the 5-day deadline pertaining to the stay, it would hold that the same logic applies to the 10-day protest filing deadline, as well. In short, if you don’t ask questions, make sure you are calculating your deadlines based on the day you were originally debriefed.
As always, when dealing with bid protest deadlines, these issues can be complicated and confusing. Getting the right guidance is imperative. If you have questions about bid protests, debriefings, filing deadlines, or the automatic stay, the Obermayer team is here to help.
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.