United States: Post-Award Protest Primer: Part 3

Last Updated: July 24 2017
Article by Daniel E. Chudd and James A. Tucker

Now that we've discussed the award letter and debriefings, we'll move on to next steps: timeliness of initial protest filings and the protest timeline.  In the context of all post-award debriefings, there are two timeliness considerations.  First, meeting the GAO's timeliness requirements and, second, whether the filing will result in an automatic stay.  Having discussed debriefings last week, we will first look at what is technically an "exception" to the timeliness rules related to a required debriefing, then turn to protests when a debriefing is not required.  We will also discuss what may be one of the biggest traps of protest timeliness: protests in the context of a competitive range determination.  Finally, we will walk through the timeline of a post-award protest after filing.

Post-Award Protest Timeliness – Required Debriefing

When a debriefing is required, either for a FAR Part 15 procurement, or a sufficiently large task or delivery order under FAR Part 16, the close of the debriefing will start the clock for purposes of GAO timeliness and the automatic stay of contract performance under the Competition in Contracting Act.  It is imperative, however, that a contractor submit a request for debriefing in writing within three days of the notice of award for the timeliness rules related to required debriefings to apply.  It is also important in this context to have a clear understanding of when a debriefing is closed.  For example, if an agency agrees to respond to questions at a time following an oral debriefing and confirms that the debriefing will be held open until such questions are answered, the clock will begin to run only when the agency has responded.  If, on the other hand, the agency refuses to answer questions or is unclear as to whether it will hold the debriefing open, the safest interpretation is that the agency closed the debriefing on the date of the oral debriefing.

Once the agency has closed a required debriefing, a contractor wishing to file a protest has 10 days to submit its protest to the GAO.  This is considered the GAO's "debriefing exception."  4 C.F.R. § 21.2(a)(2).  To ensure a stay of contract performance under the Competition in Contracting Act, however, the Agency must receive notice of a protest by the GAO within five days of the requested and required debriefing.  31 U.S.C. § 3553(d)(4)(B).  The most important consideration in this regard is that the agency must be notified by the GAO of the protest – a protester merely copying the Contracting Officer on the protest filing is not sufficient.  See 31 U.S.C. § 3553(b)(1); 31 U.S.C. § 3553(d).  Thus, when filing a protest for purposes of the stay, a contractor should file by the end of the fourth day or early on the fifth day after the close of the debriefing to allow the GAO time to notify the agency.  It is also good practice to contact the GAO hotline a few hours after filing to ensure that the GAO has notified the agency of the protest.

Although the differing deadlines can be confusing, they can also provide opportunities for contractors as well.  For example, an offeror with some straightforward protest grounds and some more complex or technically complicated protest grounds may choose to file the straightforward protest grounds within five days of the debriefing, then supplement their protest with the other protest grounds in the next five days, i.e., still within 10 days of the debriefing.  This would ensure that the stay of performance would go into effect, but would still allow the offeror additional time to ensure the accuracy of its more complicated protest grounds in a timely fashion.

Post-Award Protest Timeliness – No Required Debriefing

In a procurement where a debriefing is not required, the time to file a protest does not run from the close of a debriefing (even if one is provided voluntarily by the agency).  Instead, for purposes of GAO timeliness, a protest must be filed within 10 days of when the protest ground was known or should have been known.  In almost all cases this will be from the date of the offeror's notice of award (or from when the award is otherwise publicly announced).

For purposes of the automatic stay, the Competition in Contracting Act provides that the stay will be effective if the Contracting Officer is notified of the protest by the GAO within 10 days of contract award.  31 U.S.C. § 3553(d)(4)(A).  This rule, in fact, can apply to a required debriefing situation as well, although agencies often will ensure that the required debriefing is not provided early enough such that the 10-day rule provides a benefit.  Once again, it is important to file early enough (either on the ninth day or early on the tenth day) to ensure that the GAO will have time to notify the agency of the protest filing.  In addition, offerors should note that the deadline for filing runs from the date of contract award, not from the date of notice of award.  Thus, to the extent award is made a day or two before the offeror receives the notice of award, the offeror must count from the date of the actual contract award.

The Competitive Range Timeliness Trap

One of the timeliness traps for the unwary comes in the context of competitive range debriefings.  When an offeror is excluded from the competitive range, the FAR provides that the offeror may request a debriefing (which will be required).  The FAR allows the offeror to request a pre-award debriefing or to request that the debriefing be delayed until after award.  FAR 15.505(a).  At first blush, the second option may seem the more advantageous to the offeror:  after all, the agency is required to provide more information in a post-award debriefing than it is in a pre-award debriefing.  Compare FAR 15.506(d) (post-award debriefing requirements including information about the awardee), with FAR 15.505(f) (pre-award debriefing requirements).

However, the FAR warns, rather understatedly, that "[d]ebriefings delayed pursuant to [the contractor's request] could affect the timeliness of any protest filed subsequent to the debriefing."  The GAO, in fact, has consistently held that an offeror that learns of their its exclusion from the competitive range but chooses to delay the debriefing until after award gives up its opportunity to protest.  See, e.g., VMD Systems Integrators, Inc., B-412729, Mar. 14, 2016, 2016 CPD ¶ 88 (applying very strict interpretation of timeliness rules as discussed in depth in an earlier post).

Thus, although not technically a post-award protest issue, it is important for offerors to be aware of this trap and to request a pre-award debriefing whenever they think they may want to protest their exclusion from the competitive range.  If the agency then determines it would rather delay the debriefing until after award, there will be no effect on the timeliness of the potential protest.

Protest Timeline

As we have explained in the Protest Timeline Infographic, the initial steps in a protest after the initial filing are fairly straightforward.  The protester must file a redacted version of the protest within one day of filing its protest.  Within the first few days to a week after filing, the GAO will docket the protest, send an acknowledgment of the protest, and issue a protective order (if one was requested).  The awardee will also likely intervene, and parties will submit their applications for access to the protective order within this time.  Any requests for full or partial dismissal are normally filed within about two weeks of the protest filing.

Unless the protest is dismissed, the agency must file its agency report and the relevant agency record documents within 30 calendar days after the protest is filed.  Five days before the agency report is due, the agency must submit an index of the record documents it proposed to produce, as well as specific responses concerning any documents that have been requested by the protester and are being withheld.  Within two days of receipt of the index and responses, the protester must file any objections to the index and the proposed scope of document production.

Following receipt of the Agency Report, the protestor and intervenor have 10 days to file their Comments on the Agency Report.  The protester must also file any supplemental protests within 10 days of whenever the supplemental protest ground is known or should have been known.  At times the agency may choose to submit the agency record, or core documents of the agency record, in advance of the due date for its Agency Report.  If this occurs, the protestor may not wait until the date its Comments are due to file any supplemental protests based on the record document; rather, the protester must file its supplemental protest grounds within 10 days of receipt of the documents on which the new protest ground is based.  At times, this can result in multiple clocks running in parallel, with some supplemental protests due before Comments, others due with Comments, and others due after Comments.  Even if the GAO grants the parties time extensions for commenting on agency filings, supplemental protest grounds (if any) must be raised within 10 days of whenever the protester knew or should have known of the new ground.

The timeline of a protest following Comments is not well-structured.  If a supplemental protest is filed, or if the GAO wants to learn more about a certain issue, it will request supplemental briefing.  This supplemental briefing often takes 3-4 weeks following comments to complete, but may be longer or shorter depending on the complexity of the issues.  If the GAO requires a hearing – something that has been getting far more rare recently – it will likely hold the hearing shortly after the supplemental briefing, often around day 60-70 following the initial protest.  This timing gives the GAO time to receive post-hearing briefs and draft its decision.

The GAO's decision, in all events, is due no later than 100 calendar days after the initial protest is filed.  Although supplemental protests are separately docketed by the GAO, and formally have a new 100-day clock running, the GAO will in almost all cases issue a single decision on the initial protest and supplemental protest within 100 days of the initial protest filing.  We will discuss in future portions of this series the meaning of the GAO's decision as well as off-ramps that may be taken by the GAO or parties prior to receiving the ultimate GAO decision.

Because of the generality of this update, the information provided herein may not be applicable in all situations and should not be acted upon without specific legal advice based on particular situations.

© Morrison & Foerster LLP. All rights reserved

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