Avoiding Common Bid Protest Mistakes
Mistake 4: Thinking that the Exception is the Rule When it Comes to GAO Bid Protest Filing Deadlines.
Solution: Learn the Rule, The Exception, and When the Exception Does and Does Not Apply
Every contractor knows that debriefings are a great way to gather information about a contract award decision, and help evaluate the possibility of a bid protest. However, many contractors have misconceptions about the impact that debriefings have on protest deadlines. Specifically, many contractors think that the filing deadline for all protests is “10 days after the day of the debriefing.” But in many cases this is not accurate.
The GAO regulations lay out the deadlines for filing different types of protests. As discussed in our earlier posting, pre-award protests that challenge the terms of a solicitation must be filed before the deadline for bid/proposal submission. All other protests should be filed no later than 10 days after the basis of the protest is known or should have been known. The exception to this rule is for procurements involving a required and timely-requested debriefing; in those cases, protests should be filed no later than 10 days after that debriefing.
This is exactly where a lot of contractors make their mistake, by believing that this exception is the rule. These contractors incorrectly think that their protest deadline is 10 days from their debriefing, no matter what when, in reality, the 10-day protest clock starts ticking from the date of a debriefing only if the debriefing was both required and timely requested. Accordingly, to ensure compliance with filing deadlines, you need to: (1) make sure that you know whether a debriefing is “required” and (2) timely request your required debriefing. Which leads us to two big questions: First, when are debriefings required. Second, what is considered a “timely” debriefing request?
On the first question – When are debriefings required? – they are required a lot less often than many contractors think.
- Debriefings are not required for GSA Schedule Procurements under FAR Part 8, for Commercial Item Procurements under FAR Part 12, for Simplified Acquisition Procurements under FAR Part 13, or for Sealed Bidding Acquisitions under FAR Part 14. Note, however, that for some FAR Part 8 and FAR Part 13 procurements, while a “debriefing” is not required, the agency is required to provide “a brief explanation of the basis for the award decision.” It is important to understand that, just because the agency agrees to give you a debriefing, it does not necessarily mean a debriefing was, technically speaking, “required,” or that the debriefing you receive has any impact on your protest deadline. Similarly, a “brief explanation” under FAR parts 8 or 13 does not constitute a debriefing (even if the government folks you talk to inaccurately refer to it as a “debriefing,” which a lot of them do), and does not impact the normal rule concerning protest deadlines.
- Debriefings are required for any competitive procurement under FAR Part 15 (Contracting by Negotiation). Debriefings are also required for certain task orders, pursuant to FAR Part 16. Sometimes – and this can get tricky – they can be required for other procurements that incorporate FAR Part 15 procedures.
If a debriefing is indeed required, it becomes an issue of timely requesting your debriefing. Which begs our second critical question: What is considered “timely?”
In the post-award context, debriefings need to be requested within three (3) days of the date the contractor receives notice of award. Usually, that notice arrives in the form of an “unsuccessful offeror letter,” but it could also be posted or noticed in other ways. In the pre-award, competitive range context (remember our good friend competitive range?), a debriefing must be requested within three (3) days of the notice of exclusion from the competitive range. So, if you get notice of an award, or of exclusion from the competitive range, don’t delay! Request your debriefing quickly, and in writing. Be aware that an agency may decide to give you a debriefing even if you are late in requesting it. But don’t be lulled into a false sense of security – if you were late in requesting the debriefing, it likely does not extend your protest deadline.
If you do NOT fit into the required & timely-requested exception to the rule, remember that your 10-day protest filing deadline clock starts ticking not when you get your debriefing, but the day “you know or should have known” the basis of your protest. In some limited circumstances, you still may be able to argue that the clock started on the day you got your debriefing or your brief explanation. More often, though, the GAO will consider the notice of award or unsuccessful offeror notice to be the triggering event. The agency will certainly argue for this interpretation.
As you can see, determining whether your debriefing was required, when to request your debriefing, and how your debriefing impacts your protest filing deadline, can be a very complex matter. It may be further complicated if you do not know what section of the FAR is applicable to the procurement at issue. Or by the fact that the enhanced debriefing rules alter when a debriefing is considered concluded, and when the clock starts to run. Or by the fact that there are different deadlines if you want the automatic stay. For that reason, it is best to engage a legal professional as soon as you think you have a potential protest, so they can advise you on the appropriate course of action, and ensure no deadlines are missed.