Not All Debriefings Are Created Equal
July 13, 2017
By: Eric Whytsell
Faced with a short time in which to prepare a protest, contractors sometimes rely too heavily on the notion that the protest clock doesn’t start running until a debriefing is held. Unfortunately, only certain debriefings have that effect. Other types of debriefings, while they may provide useful insight into the procurement process or how to improve future offers, do not extend the timeline for filing. For example, as the recent Government Accountability Office (GAO) decision in Global Aerospace Corporation, B-414514 (July 3, 2017) makes clear, debriefings conducted in connection with an SBIR procurement do not provide a potential protester extra time to prepare.
The matter involved a challenge to an SBIR Phase II award by the National Aeronautics and Space Administration (NASA) related to a solicitation seeking proposals for various potential research/research and development topics. The award in question, which focused on vehicles capable of conducting scientific research on either the planet Venus or Saturn’s moon Titan, was made to a successful SBIR Phase I awardee, Thin Red Line USA d/b/a MKF Interests, LLC (TRLU). The solicitation provided that the award of a Phase I contract would also serve as a request for proposal for Phase II follow-on projects. NASA received proposals for Phase II projects from three Phase I awardees, including TRLU and the protester, Global Aerospace Corporation (Global).
Based on a multi-step evaluation process--including peer reviews and assessments and prioritization by NASA field centers and the cognizant mission directorate--TRLU’s proposal was ranked 23d and Global’s proposal did not break the top 65. When it learned on March 8, 2017 that it would not receive an award, Global requested and received a debriefing from NASA. On March 27, 2017 (within 10 days of its debriefing), Global filed this protest, arguing in part that NASA should have found TRLU ineligible for a Phase II award because it violated the solicitation’s prohibition on performance outside of the United States.
In response to that protest ground, NASA argues that this protest allegation should be dismissed as untimely because it was raised more than 10 days after Global knew or should have known of the basis for protest. Global claimed, however, that the protest ground was timely because it was raised within 10 days of the receipt of its debriefing. In other words, Global believed that the 10-day protest clock did not start until it received its debriefing.
The GAO disagreed, first noting that its Bid Protest Regulations contain strict rules for the timely submission of protests, under which a protest based on other than alleged improprieties in a solicitation (such as Global’s challenge to the eligibility of TRLU), must generally be filed not later than 10 days after the protester knew or should have known of the basis for its protest, whichever is earlier. While the GAO acknowledged an exception to that general rule when a protest challenges “a procurement conducted on the basis of competitive proposals under which a debriefing is requested and, when requested, is required.” 4 C.F.R. § 21.2(a)(2). In such cases, the start of the protest clock is delayed, so that any protest basis of which protester is or should have been aware--either before or as a result of the debriefing--must be filed no later than 10 days after the debriefing is held.
Unfortunately for Global, not all debriefings are treated the same. More particularly, not all debriefings are considered to involve “competitive proposals” that trigger the debriefing exception to the general rule. As the GAO explained, in determining whether a given procurement was conducted on the basis of competitive proposals, the use of negotiated procedures in accordance with Federal Acquisition Regulation (FAR) Part 15--as evidenced by the issuance of a request for proposals--is the hallmark. In contrast, FAR § 6.102 identifies “other competitive procedures” distinct from competitive proposals, including: (i) Brooks Act procurements for architecture/engineer services, (ii) procurements for basic and applied research conducted pursuant to a Broad Area Announcement; and (iii) Federal Supply Schedule (FSS) procurements pursuant to FAR subpart 8.4. Under established GAO precedent, procurements conducted under “other competitive procedures” are not conducted on the basis of “competitive proposals” as contemplated by the Bid Protest Regulations, and, therefore, the debriefing exception does not apply in those procurements.
While SBIR procurements are not expressly identified in FAR § 6.102, the GAO explained that applicable statutory provisions make clear that a competitive SBIR procurement is an “other competitive procedure”. More particularly, NASA procurements are subject to Chapter 137 of Title 10 of the United States Code. One such applicable statute is 10 U.S.C. § 2302(2), which defines the term “competitive procedures” to mean not only procedures under which the head of an agency enters into a contract pursuant to full and open competition, but also the “other competitive procedures” set forth in FAR § 6.102, as well as “a competitive selection of research proposals resulting from a general solicitation and peer review or scientific review [under the SBIR program].” (The GAO notes that a materially similar provision, 41 U.S.C. § 152, applies to procurements conducted by civilian agencies pursuant to Title 41 of the U.S. Code.) Thus, SBIR procurements are not conducted based on “competitive proposals” and do not trigger the debriefing exception.
Here, the GAO found that Global knew or reasonably should have known the basis for its protest relating to TRLU’s eligibility for award before NASA’s March 8, 2017 notice of SBIR awards. Indeed, Global did not claim that it learned any new information regarding TRLU from its debriefing. Under such circumstances, any protest challenging TRLU’s eligibility had to be filed, at the very latest, within 10 days of the agency’s notice of its award decision. By attempting to rely on the debriefing exception and waiting until March 27, 2017 (after its debriefing), Global waited too long. The GAO rejected its eligibility protest ground as untimely.
To avoid this outcome, offerors considering a post-award protest in any procurement context should work to avoid being lured by the siren song of the debriefing exception. You must always look first at the nature of the procurement and whether it involves the required “competitive proposals” or simply “other competitive procedures”. If the former, as in FAR Part 15 procurements, the debriefing exception will operate to delay the time to file--to either 10 days after the debriefing or, if you’re seeking a mandatory stay under the Competition in Contracting Act (CICA), 5 days after the debriefing. But in the latter case, the general rule applies and protests must be filed within 10 days of when you knew or should have known the basis of its protest, whichever is later. And if you’re pursuing an SBIR award, you can count on not being able to take advantage of the debriefing exception. In any event, be careful out there.
Eric Whytsell is responsible for the contents of this Article.
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