End Of Fiscal Year Awards: Know Your Debriefing And Protest Procedures, Deadlines

Highlights

With the end of fiscal year 2023 fast approaching and federal agencies dispersing remaining appropriations, contractors awaiting decisions on proposals may receive numerous award notices in rapid succession.
Once a Notice of Unsuccessful Offeror is received, contractors are on the clock to gather information about protest options, strategy and filing a timely protest.
This Holland & Knight alert reviews deadlines and procedures for post-award protests for requesting debriefings or brief explanations of awards, as well as invoking an offeror's right to protest award decisions by agencies, among other measures.

As in prior years, the upcoming end of the federal fiscal year will be marked by a flurry of contract and task order awards, as federal agencies busily obligate remaining fiscal year 2023 appropriated funds while still available. Contractors who have been waiting for decisions on multiple proposals may suddenly receive award notices on several important opportunities in rapid succession.

To help contractors prepare, this alert reviews the deadlines and procedures for post-award protests for requesting debriefings or brief explanations of awards and for preserving and invoking an offeror's right to protest award decisions by agencies or size or status eligibility for competitors for set-aside opportunities. We hope this alert will help contractors gather information, assess protest issues and options, and ultimately make the business decision on whether to pursue a protest.

Our focus here is on post-award protests – protests that challenge an agency's decision to award or not award a contract, task order or blanket purchase agreement (BPA), or a protest that challenges an intended awardee's small business size or socioeconomic status eligibility for a set-aside award. Because awards made around the end of the fiscal year involve proposals or quotations that were submitted weeks or months ago, we will not address pre-award protests of improprieties in solicitations, which must be filed before the due date for proposals.

Gather More Information About the Agency's Award Decision by Requesting a Debriefing or Brief Explanation of the Award

The first step to developing protest options is requesting more information from the agency about its award decision. As set forth below, there are different opportunities to seek more information depending on the procurement procedure utilized for the contract, order or BPA at issue. It is important to understand these procedures and their various deadlines, as they tie directly to the deadlines to file a timely protest and trigger the automatic stay of contract performance discussed below.

During the time frame between the receipt of information and the deadline to protest and trigger the automatic stay, the contractor's leadership may confer with protest counsel to assess potential protest grounds, protest venues (i.e., agency-level, Government Accountability Office (GAO) or the U.S. Court of Federal Claims (COFC)), the potential relief from a successful protest (including voluntary corrective action by the agency) and how the procurement process might unfold after a successful protest.

The following table summarizes the opportunity to obtain more information about the award decision and how to make the request (including deadlines) for a variety of procurement procedures under the Federal Acquisition Regulation (FAR):

Type of Award	Nature of Request
FAR Part 15 Contracts: Contract awarded using FAR Part 15 "competitive negotiation" procedures	Required Debriefing: Request, in writing, a post-award debriefing from the contracting officer within three calendar days after the date on which the offeror received notice of award. (FAR 15.506) Note About the Department of Defense's (DOD) "Enhanced Debriefing" Procedure: When DOD provides a required debriefing following an award of $10 million or more, it is required to provide an opportunity for follow-up questions. The debriefed offeror may submit additional written questions related to the required debriefing not later than two business days after receiving the post-award debriefing. Then, the contracting officer must respond in writing to timely submitted additional questions within five business days after receipt of the questions. The post-award debriefing will be considered concluded for the purposes of protest and automatic stay deadlines on the date the agency delivers its written response to timely submitted additional questions.
FAR Part 14 Contracts: Contract awarded using FAR Part 14 "sealed bidding" procedures	None Required: Except for "two-step sealed bidding" under FAR Subpart 14.5, no debriefing or brief explanation is required for a sealed bidding procurement. A contractor can ask, but the contracting officer has no obligation to provide more information. Any response will not extend the deadline to trigger the automatic stay of contract performance.
FAR Par 14.5 Contracts: Contract awarded using "two-step" sealed bidding procedures under FAR Subpart 14.5	Required Debriefing After First Step: Two-step sealed bidding is a combination of competitive procedures designed to obtain the benefits of sealed bidding when adequate specifications are not available. A debrief is required after step one for procurements conducted under two-step sealed bidding. (FAR 14.503-1(g))
FAR Part 16.505 Task Orders with Price Above $6 Million: Task or delivery order with a total price that exceeds $6 million awarded under an indefinite delivery, indefinite quantity (IDIQ) contract using FAR 16.505 "fair opportunity" procedures	Required Debriefing: Request, in writing, a post-award debriefing from the contracting officer within three calendar days after the date on which the offeror received notice of award. (FAR 16.505(b)(6); FAR 15.506) (Note: Required post-award debriefings conducted by DOD following an award of $10 million or more are subject to the procedure for follow-up questions described above regarding FAR Part 15 procurements.) (Note: There is no GAO protest jurisdiction for task orders with a price under $10 million awarded by civilian agencies and under $25 million for task orders awarded by DOD and its departments and activities.)
FAR Part 16.505 Task Orders with Price at or Below $6 Million: Task or delivery order with a total price at or below $6 million awarded under an indefinite delivery, indefinite quantity (IDIQ) contract using FAR 16.505 "fair opportunity" procedures	Nothing: No post-award debriefing or brief explanation is required.
FAR 8.4 FSS Orders or BPAs: Task order or BPA awarded under the Federal Supply Schedule (FSS) Program (either GSA or VA schedules) using FAR Subpart 8.4 procedures	Brief Explanation: Request a "brief explanation of the basis for the award decision" from the contracting officer in accordance with FAR 8.405-2(d) (for task orders) and FAR 8.405-3(b)(3) (for BPAs). We recommend submitting the request immediately (but no later than three calendar days) after receiving notice of award.
FAR Part 13 Simplified Acquisitions: Contract, order or BPA awarded using simplified acquisition procedures under FAR Part 13	Brief Explanation: Request a "brief explanation of the basis for the award decision" from the contracting officer in accordance with FAR 13.106-3(d). We recommend submitting the request immediately (but no later than three calendar days) after receiving notice of award.
FAR Part 12 Commercial Item Procurements: Contract, order or BPA for commercial items awarded using FAR 12 procedures	Depends on Procedure Used: Depends on whether the agency conducted the procurement in conjunction with FAR Part 13, 14, or 15. (FAR 12.102(b)) Read the RFP to understand what procedure was used. Then see above for corresponding debriefing or brief explanation procedure under FAR Part 13, 14 and 15.

Understand the Time for Making a "Go/No Go" Decision to Protest an Agency's Award Decision

When information is received – whether from a required debriefing, brief explanation or otherwise – the protest-related deadlines are ticking away. This is a complex and unforgiving area of protest practice, as the deadlines depend on whether or not a debriefing is required. Additionally, the available protest venues depend upon the nature of the award (i.e., contract, task order under FAR Part 16, task order under the FSS Program) and, in the case of FAR Part 16 task orders, the value of the award. The deadlines also vary by protest venue: agency-level, GAO or COFC. These factors drive the contractor's leadership to assess available information and potential protest grounds and make the "go" or "no go" decision about whether to invest in the protest process.

It is also important to understand that there are two deadlines associated with agency-level and GAO protests: 1) the deadline to file a timely protest and 2) the deadline to file a protest that triggers the automatic stay of contract performance under the Competition in Contracting Act (Automatic Stay).

The following table summarizes the protest and Automatic Stay deadlines for the various types of contract awards:

Type of Award	Deadlines to Protest and Trigger Automatic Stay
FAR Part 15 Contracts: Contract awarded using FAR Part 15 "competitive negotiation" procedures	GAO Deadline to Protest: The later of: 1) If a debriefing is not required or not requested, 10 days after the basis of protest is known or should have been known (whichever is earlier), or 2) when a required debriefing is timely requested, 10 days after the date on which the debriefing is offered. (For any additional information that becomes available after the debriefing, a supplemental protest is due within 10 days after the information is known or should have been known.) (Note: if a solicitation impropriety is discovered after submission of proposals, a protest of the impropriety must be filed within 10 days of when it was known or should have been known. This deadline is not extended by a debriefing request.) If a timely agency-level protest was previously filed, any subsequent protest to GAO must be filed within 10 days of actual or constructive knowledge of initial adverse agency action. Deadline to Trigger Automatic Stay: The later of: 1) 10 days after the date of contract award or 2) when a required debriefing is timely requested, five days after the debriefing date offered to an unsuccessful offeror. (Note: If a timely agency-level protest was previously filed, there is no way to continue the automatic stay by filing a subsequent protest with GAO unless such GAO protest is filed within 10 days after the date of award or within five days after the offered debriefing date.) COFC Deadline to Protest: For post-award protests, there is no strict deadline to file timely at COFC. Instead, the court applies the doctrines of "waiver" and "laches" to assess whether it will hear a protest. The doctrine of waiver bars protests of "patent" (apparent) solicitation improprieties after the close of the bidding process. The doctrine of laches bars a post-award protest where the protester delayed filing for an unreasonable and inexcusable length of time and the delay caused prejudice to the government. There is an "extraordinary circumstances" exception that is rarely invoked. Preliminary Injunction of Contract Performance: There is no "automatic" stay triggered by filing a protest with the court. Instead, unless the agency voluntarily agrees to stay contract performance while the protest is pending, the protester must request that the court enter a "preliminary injunction" to stay performance. Any delay in filing the protest will be a factor the court considers when balancing the harm to the government from a preliminary injunction against the alleged irreparable harm to the protester if no injunction is granted. Agency-Level Deadline to Protest: No later than 10 days after the basis of protest is known or should have been known, whichever is earlier. (FAR 33.103 does not provide that a required debriefing extends the deadline for filing a protest when protest grounds are known or should have been known prior to the offered debriefing.) Deadline to Trigger Automatic Stay: The later of: 1) within 10 days after contract award or 2) when a required debriefing is timely requested, within five days after a debriefing date offered to the protester.
FAR Part 14 Contracts: Contract awarded using FAR Part 14 "sealed bidding" procedures	GAO Deadline to Protest: Not later than 10 days after the basis of protest is known or should have been known (whichever is earlier). (Note: There is no required debriefing for this type of procurement that can extend the protest deadline beyond 10 days.) (Note: If a solicitation impropriety is discovered after submission of proposals, a protest of the impropriety must be filed within 10 days of when it was known or should have been known. This deadline is not extended by a debriefing request.) If a timely agency-level protest was previously filed, any subsequent protest to GAO must be filed within 10 days of actual or constructive knowledge of initial adverse agency action. Deadline to Trigger Automatic Stay: Within 10 days after the date of contract award. (Note: There is no required debriefing for this type of procurement that can extend the Automatic Stay beyond 10 days from contract award.) (Note: If a timely agency-level protest was previously filed, there is no way to continue the automatic stay by filing a subsequent protest with GAO if such GAO protest is filed later than 10 days after the date of award.) COFC Deadline to Protest: Same as FAR Part 15 procurements. See above. Preliminary Injunction of Contract Performance: Same as FAR Part 15 procurements. See above. Agency-Level Deadline to Protest: No later than 10 days after the basis of protest is known or should have been known, whichever is earlier. Deadline to Trigger Automatic Stay: Within 10 days after contract award. (Note: There is no required debriefing for this type of procurement that can extend the Automatic Stay beyond 10 days from contract award.)
FAR Par 14.5 Contracts: Contract awarded using "two-step" sealed bidding procedures under FAR Subpart 14.5	GAO Deadline to Protest: Same as FAR Part 15 procurement. See above. Deadline to Trigger Automatic Stay: Same as FAR Part 15 procurement. See above. COFC Deadline to Protest: Same as FAR Part 15 procurements. See above. Preliminary Injunction of Contract Performance: Same as FAR Part 15 procurements. See above. Agency-Level Deadline to Protest: Same as FAR Part 15 procurement. See above. Deadline to Trigger Automatic Stay: Same as FAR Part 15 procurement. See above.
FAR Part 16.505 Task Orders with Price Above $10 Million for Civilian Agencies or $25 Million for DOD: Task or delivery order under an indefinite delivery, indefinite quantity (IDIQ) contract using FAR 16.505 "fair opportunity" procedures with a total price that exceeds the following values: 1) $10 million when awarded by a civilian agency or 2) $25 million when awarded by DOD and its departments and activities	GAO Deadline to Protest: Same as FAR Part 15 procurement. See above. Deadline to Trigger Automatic Stay: Same as FAR Part 15 procurement. See above. COFC No protest is available. The court has no jurisdiction to hear protests of task order awards under FAR Part 16 IDIQ contracts.
FAR Part 16.505 Task Orders with Price at or Below $10 Million for Civilian Agencies or $25 Million for DOD: Task or delivery order under an indefinite delivery, indefinite quantity (IDIQ) contract using FAR 16.505 "fair opportunity" procedures with a total price equal to or below the following values: 1) $10 million when awarded by a civilian agency or 2) $25 million when awarded by DoD and its departments and activities	GAO No protest is available. GAO has no jurisdiction to hear protests of task order awards under FAR Part 16 IDIQ contracts with a total price equal to or below the following values: 1) $10 million when awarded by a civilian agency or 2) $25 million when awarded by DOD and its departments and activities. COFC No protest is available. The court has no jurisdiction to hear protests of task order awards under FAR Part 16 IDIQ contracts. Task Order Ombudsman Complaint Under 41 U.S.C. § 4106(g) and FAR 16.505(b)(8), an unsuccessful offeror for a task order below the jurisdictional threshold for GAO may file a "complaint" with the Ombudsman identified in the IDIQ contract to hear complaints that the contractor was denied a fair opportunity to compete for the task order. There is no established deadline for filing a complaint, but it is recommended that complaints be filed reasonably promptly. There is no automatic stay of task order performance when a complaint is filed.
FAR 8.4 FSS Orders or BPAs: Task order or BPA awarded under the Federal Supply Schedule (FSS) Program (either GSA or VA schedules) using FAR Subpart 8.4 procedures	GAO Deadline to Protest: Not later than 10 days after the basis of protest is known or should have been known (whichever is earlier). (Note: There is no required debriefing for this type of procurement that can extend the protest deadline beyond 10 days.) (Note: If a solicitation impropriety is discovered after submission of proposals, a protest of the impropriety must be filed within 10 days of when it was known or should have been known. This deadline is not extended by a debriefing request.) If a timely agency-level protest was previously filed, any subsequent protest to GAO must be filed within 10 days of actual or constructive knowledge of initial adverse agency action. Deadline to Trigger Automatic Stay: Within 10 days after the date of contract award. (Note: There is no required debriefing for this type of procurement that can extend the Automatic Stay beyond 10 days from award.) (Note: If a timely agency-level protest was previously filed, there is no way to continue the automatic stay by filing a subsequent protest with GAO unless such GAO protest is filed within 10 days after the date of award.) COFC Deadline to Protest: Same as FAR Part 15 procurements. See above. Preliminary Injunction of Contract Performance: Same as FAR Part 15 procurements. See above. (Note: Unlike orders under FAR Part 16 IDIQ contracts, the Court has jurisdiction to hear protests of the award of orders and BPAs under the FSS Program.) Agency-Level Deadline to Protest: No later than 10 days after the basis of protest is known or should have been known, whichever is earlier. Deadline to Trigger Automatic Stay: Within 10 days after award of the order or BPA. (Note: There is no required debriefing for this type of procurement that can extend the Automatic Stay beyond 10 days from award.)
FAR Part 13 Simplified Acquisitions: A contract, order or BPA awarded using simplified acquisition procedures under FAR Part 13	GAO Deadline to Protest: Same as FAR Subpart 8.4 procurement. See above. Deadline to Trigger Automatic Stay: Same as FAR Subpart 8.4 procurement. See above. COFC Deadline to Protest: Same as FAR Part 15 procurements. See above. Preliminary Injunction of Contract Performance: Same as FAR Part 15 procurements. See above. Agency-Level Deadline to Protest: Same as FAR Subpart 8.4 procurement. See above. Deadline to Trigger Automatic Stay: Same as FAR Subpart 8.4 procurement. See above.
FAR Part 12 Commercial Item Procurements: A contract, order or BPA for commercial items awarded using FAR 12 procedures	Depends on whether the agency conducted the procurement in conjunction with FAR Part 13, 14 or 15. Read the RFP to understand what procedure was used. Then, see above for corresponding deadlines under FAR Part 13, 14, and 15.

Set-Aside Awards: Time Frames to Protest the Intended Awardee's of Size or Socioeconomic Eligibility

In addition to filing protests challenging an agency's evaluation of proposals and award decisions, a disappointed offeror can challenge the size or socioeconomic eligibility of the intended awardee of a set-aside contract, task order or BPA with the U.S. Small Business Administration (SBA). The venue for "size" or "status" protests is different from the venues available to hear protests of award decisions, and the deadline to protest is different as well – and completely unaffected by any debriefing requirements.

These different deadlines and procedures for size and status protest compel a contractor's leadership to act more quickly to gather available information about the intended awardee's eligibility and make the "go" or "no go" decision about protesting.

The following table summarizes the deadline and recipient of a protest challenging the announced awardee's size or socioeconomic status for a set-aside award:

Type of Protest	Deadline	Recipient
Small business size	Prior to the close of business on the fifth day, exclusive of Saturdays, Sundays and legal holidays, after the contracting officer has notified the protester of the identity of the prospective awardee (13 C.F.R. § 121.1004(a)(2))	A size protest is filed with the contracting officer, who must forward the protest to the SBA Government Contracting Area Office serving the area in which the headquarters of the protested concern is located. 13 C.F.R. § 121.1003.
8(a) Status	N/A	Another business or participant cannot protest the 8(a) socioeconomic status of an intended awardee.
Service-Disabled Veteran-Owned Small Business status	By close of business on the fifth business day after notification by the contracting officer of the apparent successful offeror (13 C.F.R. § 134.1004(a)(3))	An interested party must deliver the status protest to the contracting officer. 13 C.F.R. § 134.1004(b). The contracting officer must forward the status protest to SBA's Office of Hearings and Appeals. 13 C.F.R. § 134.1004(c).
Woman-Owned Small Business (WOSB) status or Economically Disadvantaged Women-Owned Small Business (EDWOSB) status	Prior to the close of business on the fifth business day after notification by the contracting officer of the apparent successful offeror or notification of award (13 C.F.R. § 127.603(c)(1).)	An offeror for the specific award must deliver a WOSB or EDWOSB status protest to the contracting officer. 13 C.F.R. § 127.603(b). The contracting officer forwards the protest to the SBA's Director of Government Contracting. 13 § C.F.R. 127.603(d).
HUBZone Status	By the close of business on the fifth business day after notification by the contracting officer of the apparent successful offeror (13 C.F.R. § 126.801(d))	An interested party must submit its written protest to the contracting officer. 13 C.F.R. § 126.801(c). The contracting officer forwards the protest to the Director of SBA's Office of HUBZone (D/HUB). 13 C.F.R. § 126.801(e).

Conclusion

We all have heard the old adage that time is money. This takes on new meaning when applied to the strict, complicated and unforgiving deadlines associated with post-award protests and size/status protests in federal procurements. Once the Notice of Unsuccessful Offeror is received, the clock starts for gathering information about protest options and strategy and filing a timely protest that can also have the effect of, when available, preventing performance until the protest is resolved.

We hope this alert provides a refresh on the basic deadlines for debriefings, brief explanations, agency-level protests, GAO protests, COFC protests, and size and status protests ultimately decided by SBA. The application of these deadlines to particular situations is complex and treacherous. It is a good idea to consult with a skilled federal procurement protest lawyer to ensure that the decision whether to protest is made thoughtfully and timely.

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.