You’ve submitted a great proposal, but then you get the bad news – you lost. As most seasoned contractors know, an unsuccessful offeror often can ask for a debriefing from the agency and in doing so, hopefully get some valuable insight into its decision-making process. Many also understand that the benefits of asking for a debriefing may include extending the timeline for filing a GAO bid protest.
But not all solicitations are subject to the same debriefing regulations, and depending on how the procurement was conducted, an offeror might not be entitled to that extended deadline–as one company recently learned the hard way in the context of a GSA Schedule procurement.
For GAO protests, 4 C.F.R. §21.2(a) governs timeliness. The regulation provides that protests not based on alleged improprieties in a solicitation shall be filed no later than 10 days after the basis of the protest is known, or should have been known (whichever is earlier). The only exception mentioned in the regulation is for protests arising out of conduct from “a procurement conducted on the basis of competitive proposals under which a debriefing is requested, and when requested, is required.” When this exception applies, the protest cannot be filed before the debriefing date, but must be filed no later than 10 days after the debriefing is held.
The important distinction – for our discussion today – in all that statutory legalese above, is “competitive proposals”. As one recent offeror learned, if an RFP is not considered to be conducted on the basis of “competitive proposals”, the debriefing may not extend the timeline to file a protest.
IR Technologies, B-414430 (June 6, 2017), involved a U.S. Marine Corps RFP for IT support of the agency’s ELS2 system, a web-based system that provides data and information on ground equipment and weapon systems. The RFP was a small business set-aside and limited offerors to those who had existing contracts under GSA Schedule 70. The RFP provided that award would be made on a lowest-price, technically-acceptable basis.
IR Technologies submitted a proposal. On February 16, 2017, the agency informed IRT that award had been made to a competitor. The award notice stated that the competitor’s price was $6,996,549–far lower than IRT’s proposed price of $12,194,525.
After it received the notice on February 16, IRT requested a debriefing. The agency provided a written debriefing the same day. IRT then submitted follow-up debriefing questions on February 22, to which the agency replied on March 1st.
On March 6th, IRT filed a protest with the GAO. IRT raised several grounds of protest, including an argument that the awardee’s price was unrealistically low.
The agency and awardee moved to dismiss this ground of protest, arguing that it was untimely because it was not filed within 10 days of when IRT knew or should have known its basis of protest–that is, within 10 days of when IRT received the February 16 notice.
The GAO confirmed that, under its Bid Protest Regulations, a debriefing can extend the time frame to file a GAO bid protest, but only when a procurement is “conducted on the basis of competitive proposals” and where a debriefing is “requested, and when requested, is required.” These nuances can trip up prospective protesters, and that’s exactly what happened here.
The GAO found that the RFP arose out of an FSS procurement conducted pursuant to FAR 8.4. Citing its own prior decisions for support, the GAO wrote that “FSS procurements conducted pursuant to FAR subpart 8.4 are not procurements conducted on the basis of competitive proposals,” and therefore, “the debriefing exception to our timeliness rules does not apply to such procurements.” The GAO continued: “ecause the FSS buy here was not a procurement conducted on the basis of competitive proposals, the exception to our timeliness rules allowing protests to be filed within 10 days of a debriefing does not apply.”
GAO wrote that “IRT’s protest [of price realism] is based on a comparative assessment of [the awardee’s] price to its own–information which IRT knew from the award notice” issued on February 16. GAO held that IRT’s price realism challenge was untimely.
IR Technologies shows that would-be protesters would be wise to pay careful attention to how the solicitation is written. If the RFP contemplates an FSS procurement, the debriefing exception to the timeliness rules under 4 C.F.R. §21.2(a)(2) won’t apply. And although there are other benefits to asking for a debriefing, an extended protest timelines isn’t one of them.