Thought Leadership 03.29.18
New DoD rules enhance contractors’ post-award debriefing rights.
In previous Client Alerts (found here and here), we have discussed the new rules issued by the Department of Defense (DoD) that significantly bolster the rights of government contractors to receive “debriefings” pursuant to Part 15 of the Federal Acquisition Regulation (FAR), following the award of defense contracts. The Government Accountability Office’s (GAO) recent decision in State Women Corporation, B-416510 (July 12, 2018) provides important new guidance regarding GAO’s timeliness rules in the context of these newly enhanced debriefings.
The National Defense Authorization Act for Fiscal Year 2018 (2018 NDAA) required DoD to issue new regulations aimed at substantially improving the usefulness of the debriefing process in connection with defense procurements. In March of this year, DoD issued FAR Class Deviation No. 2018-O0011, titled “Enhanced Postaward Debriefing Rights,” to implement this mandate.
The Class Deviation provides that contracting officers “shall” provide unsuccessful offerors “an opportunity to submit additional questions related to the debriefing within two business days after receiving the debriefing.” Moreover, agencies “shall respond in writing” within five business days after the receipt of the questions. The Class Deviation, thus, attempts to ensure a more meaningful exchange of information between the agency and the offeror by imposing two new deadlines: the offeror now has two business days to prepare its post-debriefing questions, and the agency must respond to those questions within five business days.
More importantly, 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.” Because an offeror’s debriefing will not conclude until it has received the agency’s answers to its debriefing questions, disappointed offerors now have additional time to develop debriefing questions, to consider the important decision whether to protest, and to determine the content of any protest.
GAO’s recent decision in State Women Corporation now helps to define the limits of this new protest deadline.
Recent GAO Decision Clarifies Filing Deadline
State Women Corporation involved an Army Corps of Engineers contract for the design and construction of a new consolidated morgue and visitation center at the Kabul National Military Hospital in Afghanistan. Disappointed offeror State Women Corporation (SWC) requested a debriefing and was provided with the agency’s written response on May 28, 2018. This response also invited SWC to submit any additional questions related to the debriefing pursuant to the “Enhanced Postaward Debriefing Rights” Class Deviation. SWC timely submitted follow-up questions on May 28, and the agency timely responded in writing on June 1. In this second response, the agency stated that the “debrief is hereby concluded.” Nevertheless, on June 8, SWC submitted another list of questions regarding the evaluation of its proposal, which the agency responded to on June 20. On June 24, 2018, SWC filed its protest with the GAO and the Corps filed a request for dismissal on the basis that the protest was untimely. Specifically, the Corps argued that SWC’s protest must have been filed by June 6, five days after the Corps’ June 1 response.
The GAO held that the time period for SWC to file its protest began to run on June 1, when the Corps responded to the protester’s initial debriefing questions and advised SWC that the debriefing was completed. However, the GAO ruled that SWC still had 10 calendar days after the date on which the debriefing is completed to timely file its protest. Thus, while the GAO did dismiss SWC’s protest as untimely filed, it disagreed with the agency’s position that protests must be filed within five days after written responses are received. The GAO stated that under its Bid Protest Regulations, “a protest based on other than alleged improprieties in a solicitation must be filed not later than 10 calendar days after the protester knew, or should have known, of the basis for protest, with an exception for protests that challenge a procurement conducted on the basis of competitive proposals under which a debriefing is requested and, when requested is required. In such cases, protests must be filed not later than 10 days after the date on which the debriefing is held.” (citation omitted). The GAO clarified that the five-day period delineated in the Enhanced Postaward Debriefing Rights, and the underlying statutory changes to the Competition in Contracting Act, relate solely to the agency’s obligations with respect to complying with the mandatory stay of contract award or performance of an awarded contract upon the filing of a protest with GAO.
The State Women Corporation decision provides important guidance to prospective offerors. First, as the GAO held, the Enhanced Postaward Debriefing Rights do not alter the timeliness rules otherwise established by GAO’s Bid Protest Regulations. Additionally, where an agency voluntarily answers further questions after the formal debriefing has concluded, the additional responses do not extend the timeliness deadlines where the agency had previously stated that the debriefing was concluded. The time period to file a protest begins once the initial questions are answered in writing.
Despite this additional clarity, this ruling is limited by two key factual findings. First, SWC did not learn of its protest grounds from the agency’s supplementary June 20 response. If it had, SWC may have been able to file a timely protest within 10 days of June 20. Second, the agency explicitly and unambiguously stated that the debriefing was concluded when it responded to SWC’s original debriefing questions on June 1. Had the agency been ambiguous or silent as to whether the debriefing remained open, perhaps the GAO would have been more sympathetic to SWC’s timeliness argument. In short, while the new Enhanced Postaward Debriefing Rights provide a more hospitable timeframe in which defense contractors can consider agency award decisions and determine whether to protest, they do not provide a safe harbor for contractors that fail diligently to pursue their rights.