United States: It's 4:30 P.M., Do You Know Where Your Debrief Request Is?

Mitchell A Bashur is an Associate in Holland & Knight's Tysons office

Amy L. Fuentes is an Associate in Holland & Knight's Tysons office

For those of you who have ever protested a solicitation before the Government Accountability Office (GAO), you know about GAO's strict rules regarding timeliness. Under GAO rules, a document is considered filed on a particular day if it is received in GAO's new electronic filing system by 5:30 p.m. ET. This rule is strictly enforced, as shown by the recent dismissal of a protest in CWIS, Inc., B-416544. In that case, GAO dismissed a protest filed by 5:46 p.m, as untimely, even though the late filing resulted from an issue with GAO's new electronic filing system.

What you may not know, however, is that similar strict timeliness rules also apply to requesting a required debriefing. In the recent Exceptional Software Strategies, Inc. decision, GAO held that close of business for government agencies was 4:30 p.m., based on the time set forth in FAR 33.101, which governs agency protests. GAO accordingly ruled that a debriefing request received after 4:30 p.m. was untimely. Because GAO found that the debriefing request was untimely, the protest itself was untimely.

Debriefing "Exception" to GAO's 10-Day Rule

An important tool in a contractor's tool belt is the debriefing "exception" to GAO's 10-day rule, which tolls the protest filing period in certain circumstances. As most contractors know, GAO's timeliness rules require protests to be filed no later than 10 calendar days after the basis of the protest is known or should have been known, whichever is earlier. Under the debriefing "exception," if a debriefing is requested and is required, a protester may file a protest no later than 10 days after the date on which the debriefing is held. Of course, to receive a CICA stay, contractors must file the protest within five days of receiving a debriefing. See FAR 33.104(b), (c). This request for a required debriefing, for a pre-award protest, must be submitted to the contracting officer within three days of receiving notice the agency has excluded the offeror from the competition. If an offeror fails to timely request a debriefing, the offeror is not entitled to a pre-award or post-award debriefing — and therefore, the debriefing is not "required." The issue addressed in Exceptional Software Strategies is when the request must be received by the contracting officer on the third day to be timely.

Exceptional Software Strategies

In Exceptional Software Strategies, the protestor requested a debriefing by e-mail at 4:59 p.m. The agency provided a barebones debriefing and the protester subsequently protested its exclusion from the competitive range. Id. This protest was filed after 10 days from when the protestor learned of its exclusion but within ten days from receiving the debriefing. The agency argued, in part, that the protest was untimely because the protester failed to request its debrief within the timeframe required by the FAR. The agency maintained that the debriefing that subsequently took place was therefore not a "required" debriefing that tolls GAO's timeliness rules and was merely a courtesy debriefing under which protester learned no new information.

GAO agreed with the agency and dismissed the protest as untimely because the protester filed its protest after 4:30 p.m. In doing so, GAO applied FAR 33.101 to the agency and reasoned that pursuant to the FAR, "[u]nless otherwise stated, the agency close of business is presumed to be 4:30 p.m., local time," and documents received after close of business are considered filed as of the next day. In reaching its decision, GAO referenced other FAR provisions that also applied a 4:30 p.m. default close of business time for government agencies.

Key Takeaway From Exceptional Software Strategies

The takeaway from Exceptional Software Strategies is that contractors should be wary of requesting a debriefing from an agency last minute. As the Exceptional Software decision makes clear, GAO strictly interprets the FAR and its applicable protest regulations for timeliness — both in terms of protest filings and debriefing requests.

The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.

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