Don't Count on Enhanced Debriefing Rights to Extend Protest Filing Deadlines Indefinitely
August 10, 2018
By: Eric Whytsell and Judith Araujo
Disappointed bidders usually want an explanation of why they lost. The bid protest regulations recognize as much and provide unsuccessful offerors an opportunity to receive a debriefing that explains the basis for the agency’s decision. The Department of Defense (DoD) recently decided to provide enhanced debriefing rights to its unhappy offerors, which is generally considered a good thing, at least in theory. As the Government Accountability Office (GAO) decision in State Women Corp., B-416510 (July 12, 2018) makes clear, however, such enhanced rights to obtain an explanation are not a blank check.
The protest involved a Department of the Army, Corps of Engineers, (USACE) award of a contract for the design and construction of a morgue and visitation center at the Kabul National Military Hospital in Afghanistan. The USACE issued the request for proposals (RFP) in January 2018 and, on May 16, notified State Woman Corp. (SWC) of its decision to award the contract to Macro Vantage Levant DMCC (MVL).
A couple of months prior to the award, the DoD issued Class Deviation 2018-O0011 – Enhanced Post Award Debrief Rights (Enhanced Debriefing Rights). Essentially, this Class Deviation invites unsuccessful offerors to submit additional questions within two days after the initial debriefing, and requires that the agency respond to such within five days after receipt. Once the agency delivers its written responses to the additional questions, the debriefing period may be concluded.
The same day SWC learned it had lost, it requested a debriefing from the USACE. On May 28, the agency replied with a written debriefing, which described the rationale for the decision. Notably, this letter also provided that SWC could submit additional questions pursuant to the DOD Enhanced Debriefing Rights. On the same day, SWC exercised those rights and submitted additional questions regarding the evaluation of its proposal and of offerors’ proposed prices. Three days later, on June 1, the USACE provided a written responses to SWC’s questions and, crucially, noted that “[t]he debrief is hereby concluded.”
Still not satisfied, on June 8, SWC submitted further questions. In response, the USACE responded to these questions on June 20. Subsequently, on June 24, SWC filed this protest challenging the agency’s evaluation of its proposal and the best-value tradeoff analysis.
The USACE moved to dismiss the protest as untimely because it was filed after the close of business on June 6, i.e. more than five days after the enhanced debriefing period had concluded with the agency’s June 1 response. SWC asserted that the debriefing period concluded with the Army’s June 20 response, so that the protest filed four days later was timely.
The GAO agreed with the agency that the protest was untimely, and that the debriefing period had concluded on June 1. However, the GAO explained that five days was not the applicable window within which to timely file the protest. Instead, as provided in the underlying bid protest regulations, 4 C.F.R. § 21.2(a)(2), a ten day filing window applies to enhanced debriefing procedures as well. The Enhanced Debriefing Rights do not modify this timeliness requirement. The GAO also noted that even though the USACE later voluntarily responded to further questions, this did not change the fact that the agency had complied with its obligations, which required only one round (not multiple rounds) of additional questions. This was consistent with the USACE’s explicitly stating that the debriefing period had closed on June 1, which made the status of the debriefing clear. This fact was key in distinguishing this case from Harris IT Servs. Corp., B-406067 (Jan. 27, 2012), where the agency was silent as to the conclusion of the debriefing period and that silence created ambiguity as to whether the debriefing period had actually come to a close.
This decision serves as a friendly reminder to agencies that, as in other areas of government contracting, being explicit is prudent in the debriefing context. For unsuccessful offerors, it highlights and clarifies the GAO’s commitment to adhering to timeliness regulations, even in light of enhanced rights.
Eric Whytsell and Judith Araujo are responsible for the contents of this article.
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