The Situation: The U.S. Government Accountability Office ("GAO") dismissed a protest challenging a contractor's exclusion from the competitive range based upon the contractor's failure to diligently pursue a debriefing.
The Result: Even though the contractor submitted a timely request for debriefing and followed up with the government several times over the months following its request, GAO found that the contractor failed to diligently pursue the basis of its protest.
The Outcome: GAO's decision emphasizes the need for contractors to take affirmative steps to ensure that debriefings are received in a timely manner.
Earlier this week, GAO dismissed a protest as untimely where a contractor submitted a timely request for debriefing but failed to diligently pursue the debriefing. While GAO routinely dismisses protests for failure to diligently pursue the basis of a protest, Information Unlimited, Inc., B 415716.40, 2019 CPD ¶ _ expands that rationale. To rely upon the debriefing date to start the protest clock, contractors must seemingly now submit both a timely request for the debriefing and diligently follow up with the agency to ensure receipt of the debriefing.
Under GAO bid protest regulations, contractors must file protests alleging improprieties in a solicitation prior to bid opening or the time established for receipt of proposals. Generally, contractors must file all other protests no later than 10 days after the contractor knew or should have known the basis of the protest. An exception exists, however, where a debriefing is required and timely requested. In those cases, a contractor must file no later than 10 days after the debriefing concludes. Preaward debriefings are to occur as soon as practicable, but the agency can delay if providing a debriefing is not in the government's best interests at the time. Postaward debriefings are required to take place, to the maximum extent possible, within five days of the contractor's request. Though the stay of performance under the Competition in Contracting Act applies automatically to preaward protests, postaward protests must be filed within the later of five days of the debriefing or 10 days of contract award to receive the stay.
The U.S. Department of the Air Force ("Air Force") notified Information Unlimited, Inc. ("IUI") that the government had excluded IUI's proposal from the competitive range on December 21, 2018. IUI immediately acknowledged the notice and requested a debriefing. The Air Force emailed its debriefing to IUI that same day, but IUI never received it.
Forty-five days later, IUI let the government know it had not received the debriefing. The Air Force responded that same day, attaching its earlier notice, but IUI never received that correspondence either. About six months later, IUI notified the Air Force that it still had not received the debriefing. The Air Force responded the same day, explaining that the government sent the debriefing months earlier. Three days later, IUI let the Air Force know that it only received the December 21 notice of exclusion from the competitive range. IUI finally received a copy of the debriefing four days later and filed its protest 10 days after that.
IUI timely requested a debriefing and filed its protest within 10 days of when it claimed it first received the debriefing. Nonetheless, GAO found IUI's follow up in the interim insufficient. Though the regulations do not mandate a specific time by which the government must provide a debriefing, GAO reasoned that waiting 45 days and then another six months to reach out to the Air Force showed a lack of diligent pursuit of the protest. Despite these unique circumstances, contractors should regularly communicate with the government and press for a debriefing, as agencies could seek to extend this decision to less extreme cases.
Three Key Takeaways
- Submitting a timely request for debriefing does not relieve a contractor of its obligation to ensure timely receipt of the debriefing. When requesting a debriefing, contractors should ask the agency to provide a date by which the government expects to provide the debriefing.
- The government has discretion regarding timing for a debriefing. Regulations provide only that the government should provide postaward debriefings within five days of a request and preaward debriefings as soon as practicable and allow an agency to delay if it's in its best interests. It is incumbent upon contractors to follow up regularly with the agency until the contractor receives the debriefing.
- Though the length of delay at issue in Information Unlimited may be unusual, the government could rely upon GAO's rationale to seek dismissal in less egregious cases, even where the contractor may not be at fault for the delay.
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.