Timeliness of Protests: Timely For Filing v. Timely for a CICA Stay
December 2, 2013
By: Lindsay Simmons
In a recent bid protest decision, the Court of Federal Claims provided a useful reminder regarding the difference between the deadline for filing a protest and the deadline for filing a protest that entitles a protester to a stay of the award under the Competition in Contracting Act (“CICA”). The Court also provided a lesson on how to count the “days” that mark these deadlines. Dyncorp International LLC v. United States, No. 13-689C (Fed. Cl. Oct. 29, 2013).
The Government Accountability Office (GAO) rules state that a post-award protest, in order to be timely, must be filed no later than 10 days after “the basis of protest is known or should have been known (whichever is earlier).” 4 C.F.R. § 21.2(a)(2). For protests challenging competitive procurements under which debriefings are requested and, when requested, are required, the protest “shall not be filed before the debriefing date offered to the protester, but shall be filed not later than 10 days after the date on which the debriefing is held.” Id.
But be careful: these deadlines are different than the deadline for obtaining a stay of performance under CICA. 31 U.S.C. § 3553(d). In order to obtain the automatic CICA stay two things must occur within 10 days after the date of contract award: First, a protest must be filed at GAO; and second, GAO must provide notice to the agency of the filing of the protest and the request for a CICA stay. The award date is the trigger for counting the 10 days, not the date on which the disappointed party learns it has a basis for protest. And the protest must be filed sufficiently in advance of the end of the 10-day period to allow GAO time to provide notice to the agency within this 10-day period from the date of award. This deadline changes to “5 days after a debriefing date offered to an unsuccessful offeror for any debriefing that is requested and, when requested, is required.” Id.
In addition to reviewing these deadlines, the Dyncorp Court addressed the question of whether or not these are calendar days. As Judge Bruggink pointed out, “neither the current CICA stay provision nor its implementing regulations employ the term ‘calendar days.’” See 31 U.S.C. § 3553(d); FAR 33.104 (2013).
Rather, 31 U.S.C. § 3555(b) provides that, “in computation of any period described in this subchapter . . . (2) the last day after such act, event, or default be included, unless – (A) such last day is a Saturday, a Sunday, or a legal holiday.”
Dyncorp, supra. GAO’s implementing regulations confirm this approach, somewhat confusingly under the definition of calendar days: “In computing any period of time described in Subchapter V, Chapter 35 of Title 31, United States Code, including those described in this part, the day from which the period begins to run is not counted, and when the last day of the period is a Saturday, Sunday, or Federal holiday, the period extends to the next day that is not a Saturday, Sunday, or Federal holiday.” 4 C.F.R. § 21(d).
What does this mean? In a post-award protest where the 10-day period from the date of award ends on a Saturday or Sunday, (5 days in a post debriefing situation), your protest will be timely if filed on Monday, but you may not get a stay if you wait until Monday. In order to obtain the CICA stay, you will need to file with GAO one day before the 5 or 10-day period runs, in this case on the prior Friday, in order to afford GAO the “one day” it is allowed within which to notify the agency. 31 U.S.C. § 3553(b)(1) (“Within one day after the receipt of a protest, the Comptroller General shall notify the Federal agency involved of the protest.”) In any event, it is always wise to follow-up with GAO to make certain they notify the agency within the requisite 5 or 10-day period.
Lindsay Simmons is the attorney responsible for the content of this article.
© Jackson Kelly PLLC 2013