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Hello all,

We awarded a single award task order for services under a IDIQ contract on the 28th of September. We sent out debriefing to the unsuccessfull offerors on the 9th of October. We were informed by one of the unsuccessfull offerors that they intended to protest and indeed they did file a protest with GAO on the 12th of October, however my agency has not recieved any official notice from GAO that this award has been protested. According to FAR 33-104 © 1 and 5, if an agency recieves notice outside the 5 day window of prescribed debriefing that agency need not suspend performance of awarded contract. My question is which agency is the FAR reffering to the GAO or the contracting agency. We really would like to find a way to keep the performance of the awarded contract in place. Thanks in advance for your suggestions.

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I suppose your task order award amount is over $5 Million -- if not, then no notice to unsuccessful offerors or debriefing was required by the FAR (I don't know about your agency regulations). See FAR 16.505( b )( 4 ).

Was your Oct. 9 communication a debriefing given in respose to a request for debriefing, or just a notification to unsuccessful offerors? There is a difference.

If your agency receives a notice of the protest within ten days after notice of contract award (ten days from Oct. 9 = Oct. 19, or later if received by the unsuccessful offerors after Oct. 9) or five days after FAR 15.505 or 15.506 debriefing (five days from Oct. 9 = Oct. 15, or later if received by the unsuccessful offerors after Oct. 9), then you will need to suspend contract performance amenable to FAR 33.104( c )( 1 ). The five-day period might have passed (or maybe not; I don't know if "sent out" means sent by you or and/or received by unsuccessful offerors), but you're still within the ten-day period. The operative words here are whichever is later. Your question is only paying attention to the five-day period, but the ten-day period still applies.

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jj - OP said award was made on 28 Sept so 10 days from award had passed prior to debriefing being sent out on 9 Oct.

Duke - What FAR part was the procurement done under? We're assuming 16 but please clarify. Also - I would check with the Office of General Counsel for your agency. When I was at GSA, all GAO correspondence went to our OGC and if a notice came in late on a Friday, I might not hear about it until Monday afternoon. Does the protest show up on the GAO Bid Protest docket website?

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woops85 -- Yes, the award was made on Sep. 28 but apparently that was a secret between the Government and the winning contractor -- my experience with the GAO has been that the GAO generally starts the ten-day clock for timeliness from the date the contractor was made aware (or should have been aware) of the contract award -- in this case, that seems to be Oct. 9, so a protest received by GAO on Oct. 12 would be timely. See Bid Protest Regulations 21.2 para. (2). But it might not require a suspension of performance; the GAO has washed its hands of that matter. See Bid Protest Regulations 21.6.

If the task order value is over $5 Million, then the contracting officer may have erred by waiting until Oct. 9 to notify unsuccessful offerors. If the task order amount is under $5 Million, the contracting officer may have erred in giving any notice at all to unsuccessful offerors because notice is not given under $5 Million. See FAR 16.505( b )( 4 ).

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Guest Vern Edwards

The original poster's goal was to avoid having to shut down as a result of a protest. The rule about that with respect to post award protests to the GAO is in FAR 33.104( c)(1):

( c) Protests after award. (1) When the agency receives notice of a protest from the GAO within 10 days after contract award or within 5 days after a debriefing date offered to the protester for any debriefing that is required by 15.505 or 15.506, whichever is later, the contracting officer shall immediately suspend performance or terminate the awarded contract, except as provided in paragraphs ( c)(2) and (3) of this section.

31 USC 3553(B)(1) requires the GAO to notify the government within one day of its receipt of a protest.

Note that the suspend or terminate rule is not linked to the timeliness of the protest. The rule doesn't say "when the agency receives notice of a timely protest." If GAO gets a protest it must notify the agency before it has a chance to decide the timeliness issue. If the agency thinks the protest is untimely the agency lawyer will probably ask GAO to dismiss it immediately, which GAO may or may not do depending on the information that it has. The agency's opinion of the timeliness of the protest has no bearing on its obligation to suspend or terminate.

Note that suspension or termination is not linked to the date on which the agency notifies anyone of the award. The rule says only "within 10 days after contract award." Period. The agency's failure to give timely notice does not affect the deadlines in the rule.

Note that suspension or termination is linked only to a debriefing "that is required by FAR 15.505 or 15.506." If no debriefing is required then there need by no suspension or termination. The fact that the agency gave a debriefing is irrelevant if the debriefing was not required.

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