By: Mary Pat Buckenmeyer

The General Accountability Office (“GAO”) bid protest regulations state that all protests, other than those challenging improprieties in the solicitation, must be filed no later than 10 days after the basis of protest is known or should have been known, except for “protests challenging a procurement conducted on the basis of competitive proposals under which a debriefing is requested, and when requested, is required.”  4 C.F.R. § 21.2(a)(2).

In its simplest of terms, a debriefing is an explanation by the agency for choosing the proposal selected for award. That is, debriefings offer the exchange of information between the procuring agency and the government contractor. Usually, these take place after award, but in certain circumstances, a debriefing occurs before the award. We have explored debriefings in prior blogs (“Bid Protests – What is a Debrief?“, “Bid Protests – What is a Pre-award Debriefing?“, and “Bid Protests – What is a Pre-award Protest?“) and an insight (“Bid Protests – Debriefing Strategies“).

As those blogs and insight hinted at, the Federal Acquisition Regulation (FAR) section under which the procurement was conducted impacts several issues related to protests, including debriefings. The FAR section changes the deadlines to file a timely protest, depending on whether the debriefing is required.  

How do you know when a debriefing is “required”? And what impact does a “required” debriefing have on the timeliness of a protest? This Insight explores debriefings in a post-award context in conjunction with GAO’s bid protest jurisdiction and when those debriefings are required, when they are not, and how that impacts the timing to file a protest so that GAO will hear your case (this Insight does not explore timeliness considerations regarding a stay of the contract award or performance). 

The “Required” Debriefing (When Properly and Timely Requested):

The following FAR Parts require debriefings:

  • FAR Part 15: Contracting by Negotiation, and
  • FAR Part 16.5: Indefinite-Delivery Contracts.

For FAR Part 16.5, debriefings are required in accordance with FAR 16.505(b)(6) that states the debriefing is required for orders exceeding $6 million, and the procedures of FAR 15.506 must be followed. Debriefings are not required for FAR Part 16 if the order is under $6 million.

Note, the National Defense Authorization Act of 2020, at Section 874, provides that FAR 16.505(b)(6) be amended such that for procurements that are above the Simplified Acquisition Threshold and less than $5.5 million and upon request by an unsuccessful offeror, the contracting officer “provide a brief explanation as to why such offeror was unsuccessful that includes a summary of the rationale for the award and an evaluation of the significant weak or deficient facts in the offeror’s offer.”

Practice tip: When you receive a notice of unsuccessful offeror, know that this starts your obligation to timely request, in writing, a debriefing. The FAR requires this to be a written request received by the agency within 3 days after the date on which the offeror received notice of the contract award.  See FAR 15.506(a)(1)FAR 16.505(b)(6)(ii). Protest deadlines are not extended by late debriefing requests, and a late request impacts whether the debriefing is considered “required.”

How Does a “Required” Debriefing Impact the Timeliness of a Protest?

Essentially, a “required” debriefing is an exception to GAO’s bid protest rule that requires protests to be filed within 10 days of when the basis of protest is known or should have been known. That is, a “required” debriefing, when timely requested, can extend the time for filing a protest. Thus, a protest that falls into this category (i.e., based on a “required” debriefing) can be considered timely even where that would put the protest being filed more than 10 days after the contract award.  

In practice, this means that an offeror may learn it did not receive award, timely submit a written request for a debriefing, and that debriefing may take place several days or even weeks after the award. A protest will still be considered timely if it is filed within 10 days after the debriefing.

*A note of caution, if a debriefing is required, a protest must still be filed within 5 days to obtain a stay of performance. The 10 days noted in the GAO bid protest regulations relates to the timeliness of the protest for jurisdiction.  

When Debriefings Are Not “Required”:

The following FAR Parts do not require debriefings:

  • FAR Part 8: Federal Supply Schedule Procurements,
  • FAR Part 12: Commercial Item Procurements,
  • FAR Part 13: Simplified Acquisition Procedures Procurements, and
  • FAR Part 14: Sealed Bidding Acquisitions.  

While debriefings are not required under these FAR Parts, certain procurements under FAR Part 8 and FAR Part 13 do allow for a “brief explanation for award” that provides limited information.  FAR 8.405-2(d)FAR 8.405-3(b)(3), and FAR 13.106-3(d) state that a brief explanation of the basis for the award will be provided upon request. Note that FAR Part 8 does not require a brief explanation for award if the procurement is for supplies and services not requiring a statement of work.    

The waters are somewhat muddied in FAR Part 12 procurements that include FAR Part 15 policies and procedures.  FAR 12.102(b) states that when conducting a commercial item procurement, the procuring agency shall use FAR Part 12 policies in conjunction with FAR Part 13, 14, or 15, whichever is appropriate for the particular acquisition. Thus, when FAR Part 12 procurements are conducted more like contracting by negotiation under FAR Part 15, the debriefing is considered required.  See General Revenue Corp., B-414220.2 et al., Mar. 27, 20217, 2017 CPD ¶ 106 at 9-10; The MIL Corp., B-297508 et. al., Jan. 26, 2006, 2006 CPD ¶ 34 at 6-7.

If a Debriefing is Not “Required,” When Must a Protest be Filed?

A briefing explanation for award provided under FAR Parts 8 or 13 does not extend the deadline to timely file a protest. To be timely filed under GAO’s bid protest regulations at 4 C.F.R. § 21.2(a)(2), a protest must be filed within 10 days after the basis of protest is known or should have been known in order to obtain jurisdiction.  

The most conservative reading of GAO’s bid protest regulations means that a protest must be filed within 10 days of the date of the award. The date of award is usually the same day you receive your notice of unsuccessful offeror/vendor letter. But that is not always the case. Sometimes the procuring agency posts the notice of award online and only belatedly sends a follow-up letter or email notifying you of the award.

Sometimes the notice of award does not provide any information, and a protest cannot be filed until after receipt of the brief explanation for award because it is only then that you find out the basis of your protest grounds. In these situations, it is many times still advisable to file based off of the date of award, even with minimal information.

There are also instances where an agency provides a debriefing even though not required. If an offeror waits to file its protest until after it receives that non-required debriefing and the protest is filed more than 10 days after award, the protest is likely untimely.

If you have questions about the debriefing process, contact us by calling 800-747-9354 or by emailing clientservices@dbllawyers.com.  We can help you assess the issues and determine what strategy is right for you.

To learn more about bid protests, visit our Bid Protest Lawyer page.


 

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