Government Contracts Enhanced Debriefing Didn’t Shorten Time for Filing Protest
Friday, August 10, 2018

Enhanced Debriefing Didn’t Shorten Time for Filing Protest

By Government Contracts Editorial Staff

The Comptroller General dismissed a protest of a contract award for the design and construction of a consolidated morgue and visitation center at a military hospital in Afghanistan because the protester failed to file its challenge within 10 days of the conclusion of the debriefing. After the government selected the awardee’s $6.16 million proposal over the protester’s $2.94 million proposal and provided the protester a debriefing, the government invited the protester to submit additional questions pursuant to Department of Defense Class Deviation 2018-O0011 – Enhanced Post Award Debrief Rights. Under the deviation, contracting officers must, consistent with FAR 15.506(d), allow offerors to submit additional questions related to the debriefing within two business days after receiving the debriefing, and the government must respond to the questions in writing within five business days. The protester submitted questions regarding the evaluation on May 28, 2018, and the government responded in writing on June 1 and stated “[t]he debrief is hereby concluded.” On June 8, the protester submitted a second set of debriefing questions, and the government responded to those questions on June 20. The protester filed its protest on June 24, 2018.

Untimely Protest. However, the protest was untimely. Pursuant to GAO 21.2(a)(2), protests that challenge a procurement conducted on the basis of competitive proposals under which a debriefing is requested and, when requested is required, must be filed not later than 10 days after the date on which the debriefing is held. Here, the 10-day period began to run on June 1 when the government responded to the protester’s initial debriefing questions and advised the protester that the debriefing had closed. When the protester filed on June 24, the 10-day period had expired.

GAO Deadlines Unaffected. The Comptroller General disagreed with the government’s contention that the protester had only a 5-day window to file the protest. The government maintained the deviation established that “timely protests must be submitted … not later than ‘[f]ive days after the [g]overnment delivers its written response to additional questions submitted by the unsuccessful offeror…,’” but the deviation and its underlying statutory basis did not alter or impact the Government Accountability Office’s timeliness rules. The deviation and the related Competition in Contracting Act changes address only the government’s obligations with respect to complying with the mandatory stay of contract performance or termination of the awarded contract upon the filing of a GAO protest. (State Women Corp., 33 CGEN ¶116,018)

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