United States: "Workin' Nine To Five" – But Not In A Government Office: Requesting A Debriefing

In Exceptional Software Strategies, Inc., B-416232, the Government Accountability Office (GAO) recently addressed the obscure rules for when a disappointed offeror must request a debriefing. It's generally well known that, in procurements where offerors may have a right to debriefings, a disappointed offeror must submit a written request to the contracting officer within three days after receipt of written agency notice that the company's proposal has been excluded from the competitive range. FAR 15.505(a)(3). If an offeror misses the deadline, it does not necessarily mean it won't get a debriefing, but any debriefing will not be "required."

Background

In Exceptional Software, on Thursday, March 15, the National Security Agency (NSA) provided the protester with written notice that its proposal was excluded from the competitive range and provided a brief rationale for that exclusion. Under FAR 15.505(a)(3), the offeror then had three days – until Monday, March 19 – to request a debriefing. (When the third day falls on a weekend or holiday, the deadline always moves to the next business day.) On Monday at 4:59 p.m., the offeror submitted its written request for a debriefing, which the NSA provided on April 2. Four days later, the offeror protested.

Under the GAO's debriefing exception, a protest is timely if it is filed either within 10 days after the protester knew or should have known of the basis of protest, or within 10 days after the close of a required debriefing. We've discussed these timelines previously.) An eagle-eyed NSA lawyer noticed that, although the protester submitted its debriefing request on the third day, it waited until 4:59 p.m. to do so.

Government Offices Close at 4:30 p.m.

So, when does the third day end for debriefing request purposes? Dolly Parton might think normal business hours are Nine to Five. The FAR, however, says that, "[u]nless otherwise stated, the agency close of business is presumed to be 4:30 p.m., local time," and "any document" received after close of business is considered filed as of the next day. FAR 33.101. Because nothing in the record provided different business hours for the NSA here, the GAO held that the protester's 4:59 p.m. debriefing request was received after the agency's deemed 4:30 p.m. closing time on the third day, and therefore the April 2 debriefing was not a "required" debriefing. Accordingly, the protest's timeliness was governed by the general rule of 10 days from when the protester knew or should have known of the basis of protest, rather than 10 days after the close of the April 2 non-required debriefing.

As a result, the protester's challenge to its exclusion from the competitive range – the reasons for which were first explained in the March 15 notice of exclusion – was due to the GAO by March 26. The protester, mistakenly thinking the debriefing was required, missed its GAO filing deadline by a week and a half.

The protester argued in vain that FAR 33.101's presumption of a 4:30 p.m. closing time did not apply because that provision did not expressly reference debriefings. The GAO rejected that argument because FAR 33.101 applies to the filing of "any document" with an agency. The protester also argued that the 4:30 p.m. rule did not apply to the NSA because the NSA "operates 24-7." The GAO did not buy the implied argument that, for the NSA, the close of business means midnight. In the absence of notice of different office hours, the GAO held, the NSA (or any other agency) is deemed to close at 4:30 p.m. Having rejected the protester's attempts to salvage its protest, the GAO dismissed the entire protest as untimely.

Practical Advice

As we've said before in the context of submitting proposals and filing protests, don't wait until the last minute. The GAO decision in Exceptional Software does not explain why the protester waited until 4:59 p.m. on the very last day to submit its request. It does note, however, that the NSA's computers did not receive the request until 5:24 p.m. – which makes it late even under the Dolly Parton rule.

Best practice is not to wait until the last minute. But, if you do wait until the last minute, make sure you figure out when the last minute actually is. And, if you miss the last minute for a debriefing request, realize that any protest will not benefit from the GAO's debriefing exception and must instead be filed within the general "10 days from when you knew or should have known" timeline.

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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