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Bid Protest Filed After “Non-Required” Debriefing Was Untimely, Says GAO

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Koprince Law LLC

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GAO’s bid protest regulations provide strict timelines for filing a protest.

Typically, a protest challenging an award must be filed within 10 days after the basis of the protest is known or should have been known. There is an exception to this rule for protests filed after a debriefing, but only when a debriefing was required by the FAR. As one contractor recently discovered, where a debriefing is not required, GAO’s bid protest regulations are not nearly as forgiving.

ITility, LLC, B-415274.3, 2018 CPD ¶ 134 (Comp. Gen. Apr. 2, 2018) involved the establishment of blanket purchase agreements with Federal Supply Schedule contract holders for the Department of Defense, Defense Information Systems Agency for agency program support. The solicitation was a total small business set-aside under FAR subpart 8.4. The solicitation anticipated awarding contracts to the five lowest priced, technically acceptable offers with a substantial confidence past performance rating. ITility timely submitted a proposal in response to the Solicitation.

On December 20, 2017, ITility learned that its proposal had lost to five lower-priced offerors with acceptable plans and past performance ratings. ITility requested a debriefing.

Nearly 2 weeks later, on January 2, 2018, the agency sent ITility slides with much of the same information provided in ITility’s unsuccessful offeror notice. Two days later, on January 4, 2018, a debriefing was held in person. ITility subsequently filed a GAO protest on January 12, 2018, challenging the agency’s evaluation methods.

The central question in ITility’s protest quickly became whether the protest was timely filed after a debriefing. GAO timeliness rules generally require bid protests to be filed “not later than 10 days after the basis of protest is known or should have been known[.]” There is a limited exception, however, for procurements where an agency is required to provide a debriefing when requested.

When a debriefing is both required and requested, a protest may be timely filed within 10 days of the debriefing’s conclusion. Procurements conducted under FAR Part 15, for example, require debriefings. ITility’s procurement, however, was conducted under FAR subpart 8.4; a subpart specifically designated for FSS contracts with different procedural rules and, importantly, no required debriefing.

The agency argued that ITility’s protest was too late because it was not filed within 10 days after ITility knew or should have known the basis of the protest. Specifically, the agency claimed ITility knew or should have known the basis of the protest when it learned the name of each selected awardee, their proposed price, and the ratings of their plans and past performance.

ITility responded that the time-period to protest did not start until it was given a debriefing and it had timely filed its protest within 10 days of receiving the agency’s debriefing slides.

GAO disagreed with ITility and dismissed the protest. GAO noted that “[t]he timeliness rules reflect the dual requirements of giving parties a fair opportunity to present their cases and resolving protests expeditiously without disrupting or delaying the procurement process.” In this case, GAO concluded ITility’s protest was untimely. According to GAO, the protest needed be filed not later than 10 days after ITility knew or should have known the basis for its protest and that the “debriefing exception” for procurements conducted on the basis of “competitive proposals” under FAR part 15 did not apply to this procurement conducted pursuant to FAR subpart 8.4.

ITility is a stark reminder of the GAO’s strict timeliness rules. As ITility painfully discovered, these timeliness regulations can trap unsuspecting bid protesters. Here, ITility missed their deadline and with it, their chance at winning a bid.


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