Government Contracts Monitor

Okay, You Got a Debriefing, But Was It “Required”?

June 26, 2015

A protestor recently learned the hard way that not all debriefings are created equal. In order to take advantage of the debriefing exception to the bid protest timeliness rules, a debriefing must not only have been held, it must have been "required" to be held, for it to extend the time you have to file a protest. Absent a "required" debriefing, the filing deadline is 10 days after the basis of protest is known. Specifically, the Government Accountability Office (GAO) dismissed a protest as untimely, even though filed within 10 days of protestor’s debriefing, because the procurement was conducted under the commercial items procedures of Federal Acquisition Regulation (FAR) Part 13, which do not mandate or "require" a debriefing. Since the debriefing exception to the protest timeliness rules did not apply, GAO dismissed the protestor’s challenge to the awardee’s technical acceptability because the challenge was based on information known by protestor for more than 10 days. Gorod Shtor, B-411284, decided May 22, 2015. This decision highlights the complexities of GAO’s timeliness rules, and the importance of a protestor understanding those rules and the related FAR regulations.

The case involved a State Department procurement for an indefinite-delivery, indefinite-quantity contract for services for the U.S. Embassy in Moscow. The Request for Quotations was issued under the commercial item acquisition and simplified acquisition procedures of FAR Part 12 and Subpart 13.5, with award to be made on a lowest-priced, technically-acceptable basis. Protestor and awardee, among others, timely submitted quotations.

Protestor subsequently was notified that it had not been selected for award. This notice informed protestor as to the awardee’s name and total contract price, and that protestor’s proposal contained certain weaknesses and had been determined technically unacceptable, as well as being higher-priced. The adverse award notice also informed protestor that "[f]f you desire a debriefing, please refer to FAR provision 52.212-1(l)." Protestor promptly requested a debriefing within three days of receiving the adverse award notice. The agency provided the requested debriefing in writing four days later. Protestor filed its protest at the GAO within 10 days of the completion of the debriefing. Protestor challenged the awardee’s technical acceptability, and specifically asserted that the awardee did not operate an established business with a permanent address and telephone listing as required by the solicitation. Protestor also challenged the agency’s evaluation of protestor’s technical quotation.

Protestor asserted that its protest was timely since the protest was filed within ten days of receiving its debriefing, citing GAO Bid Protest Rule 21.2(a)(2), 4 C.F.R. § 21.2(a)(2). GAO pointed out, however, that the debriefing exception to GAO’s bid protest timeliness rules is qualified, and applies only where a debriefing, if requested, is "required" to be held. Specifically, Rule 21.2(a)(2) states that protests "shall be filed not later than 10 days after the basis of protest is known or should have been known (whichever is earlier), with the exception of protests challenging a procurement conducted on the basis of competitive proposals under which a debriefing is requested and when requested, is required."

GAO stated that, under the simplified commercial acquisition procedures applicable here, no debriefing actually was required. GAO noted that the "Debriefing" provision cited in the adverse award notice expressly starts off with the language "If a post-award debriefing is given." GAO said that this wording indicates that a debriefing was optional, not mandatory. GAO further pointed out that FAR 13.106-3(d) states that "If a supplier requests information on an award that was based on factors other than price alone, a brief explanation of the basis for the contract award shall be provided." While the GAO acknowledged, in a footnote, that the information furnished under FAR 52.212-1(l) is "essentially the same" as that required under the FAR 15.506(d) debriefing requirements, nevertheless the required "brief explanation" was not a "debriefing." As stated by GAO, "In sum, while a debriefing could be provided in the procurement here, it was not required, and what the agency was required to provide was not a debriefing."

The lesson for offerors is to know the applicable Bid Protest regulations. The debriefing exception to GAO’s bid protest timeliness rules applies only if the requested debriefing is one that the agency was "required" to provide if timely requested.