COFC Provides Bid Protest Timeliness Guidance

Background
Under a class deviation issued by the DoD entitled “Enhanced Postaward Debriefing Rights,” contracting officers are required to provide unsuccessful offerors “an opportunity to submit additional questions related to the debriefing within two business days after receiving the debriefing.” Moreover, the class deviation also states: “The agency shall not consider the post-award debriefing to be concluded until the agency delivers its written responses to the unsuccessful offeror” and the “agency shall comply with the requirements of FAR 33.104(c) regarding the suspension of contract performance.” Finally, under the Competition in Contracting Act (CICA), 31 U.S.C. § 3553(d)(4)(A), a protester is entitled to an automatic stay of performance if its Government Accountability Office (GAO) protest is filed within the later of two dates: (1) “the date that is 10 days after the date of the contract award”; or (2) “the date that is 5 days after the debriefing date offered to an unsuccessful offeror for any debriefing that is requested and, when requested, is required.”

Since the DoD rules were promulgated, questions regarding the timeliness of protests at GAO have surfaced. The NIKA Technologies decision addresses one such question—precisely when does the “five-day clock” for securing a CICA stay commence in a situation where a protester does not submit additional debriefing questions as part of the enhanced debriefing process?

Recent COFC Decision Clarifies Filing Deadline
In NIKA Technologies, the Army Corps of Engineers provided the protester with a written debriefing on March 4, 2020, and included in the debriefing the option for the protester to submit additional questions related to this debriefing within two business days after receiving the debriefing. The letter stated that “[t]he [g]overnment will consider the debriefing closed if additional questions are not received within two (2) business days. If additional questions are received, the [g]overnment will respond in writing within five (5) business days ... [and] will consider the debriefing closed upon delivery of the written response to any additional questions.” The protester sent a letter to the Corps on March 5, 2020, noting that it had received the written debriefing the previous day and that it planned to follow up with the Corps by March 6, 2020, on any official debrief questions it might submit. On March 7, 2020, the protester informed the Corps that it did not have any debriefing questions to submit.

The protester then filed a post-award bid protest at GAO on March 10, 2020. When the Corps subsequently indicated in a filing to GAO that the protester’s protest filing was untimely for the imposition of an automatic stay under CICA, the protester filed its complaint at the COFC, challenging the Corps’ refusal to implement a CICA stay.

At the COFC, the Government contended that for an automatic CICA stay to apply, the protester was required to file its protest by March 9, 2020, arguing that protester had failed to do so because it did not submit any additional questions to the Corps after the written debriefing letter was received on March 4, 2020. In contrast, the protester argued that its decision not to submit additional debriefing questions by March 6 meant that its debriefing was closed as of that date and, therefore, its protest filed on March 10 would be timely.

In his opinion, Judge Charles F. Lettow concluded that the GAO protest was entitled to an automatic stay under CICA. The judge noted that the relevant statutory language in the 2018 National Defense Authorization Act clearly includes the two business days for further questions as part of the debriefing. Judge Lettow also noted that a “debriefing date” refers to the date at the end of a potentially multiday debriefing process because the debriefing period could have been extended in this scenario if the protester had submitted additional questions to the Corps.

Conclusions
The NIKA Technologies decision provides helpful guidance to prospective offerors. As at least one judge has ruled, for procurements subject to DoD rules, the five-day clock for an automatic CICA stay will not start running until at least two business days after a disappointed offeror receives a post-award debriefing. Nevertheless, despite this additional clarity, it remains to be seen if other COFC judges will follow this precedent or if this decision will be limited, perhaps based upon the specific language of the debrief letter.

Disappointed offerors looking to “play it safe” and ensure they never have a timeliness issue should endeavor to always submit enhanced debriefing questions. Furthermore, if a disappointed offeror chooses not to submit enhanced debriefing questions, filing its GAO protest within five days after receipt of the initial debriefing letter will ensure the agency cannot argue that an automatic CICA stay does not apply.