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"Required" Debriefing


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Situation: An offeror requested a debriefing five (5) days after receiving the notice that their offer was unsuccessful. The Government agreed to accommodate the untimely debriefing request.

Question #1: Can the unsuccessful offeror still protest since the debriefing was not requested within 3 days after notification?

Question #2: If so, is the CO required to stay performance upon receipt of a protest submitted after an untimely debriefing request?

FAR 33.103(f)(3) and 33.104©(1) seem to suggest that the debriefing request must be timely in order to stay performance; however, see Raith Engineering, B-298333.3, January 9, 2007 (below), which basically states that in regards to filing a protest, it doesn't matter if the offeror secures a required debriefing (i.e.timely requested per FAR 15.506(a)(1)).

Raith Engineering, B-298333.3, January 9, 2007 "The only effect a required debriefing has on our timeliness requirements is the tolling of the filing period in limited circumstances. See Trifax Corp., B-279561, June 29, 1998, 98-2 CPD ¶ 24 at 4-5. Even where a disappointed offeror does not secure a required debriefing, it continues to retain its right to file a protest within 10 calendar days after it learns, or should have learned, the basis for protest, provided it has diligently pursued the matter. See 4 C.F.R. § 21.2(a)(2). This includes the right to file a timely protest based on information obtained during a debriefing that was not required.1 See Trifax Corp., supra (holding that a protest based on information first revealed in a non-required debriefing may be filed under the generally applicable regulations for filing timely protests)."

Question #3: How does FAR 15.506(a)(4)(ii) tie into all of this?

Finally, if an unsuccessful offer has the same right to protest under a non-required debriefing offered after an untimely request for debriefing, then why would a CO ever agree to accommodate an untimely debriefing request if it's going to restart the ten-day clock for filing a protest?

Thanks

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Since the debriefing request was not timely, it was not required and is irrelevant in determining whether a protest is timely or suspension is required.

Assuming this is an agency protest, ask yourself these questions--

1. Is the protest based on (i) an alleged impropriety in the solicitation or (ii) something else? If (i) and the protest is received after the deadline for submission of offers, the protest is untimely and can be dismissed. If (ii), proceed to #2.

2. Was the protest received 10 days from when the basis of the protest is known or should have been known? If not, the protest is not timely and can be dismissed. If yes, proceed to #3.

3. Was the protest received within 10 days of award? If so, you must suspend performance (or override the automatic stay of performance). If not, then you need not suspend performance.

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It's actually a GAO protest and it was received 20 days after award. Offeror received notification of unsuccessful offer on a Friday morning. The government received offeror's request for debriefing the following Wednesday afternoon. Am I correct that you don't count Friday but you do count Saturday and Sunday since "Day" in Part 33 means Calendar Day?

The protest was not received within 10 days from when the basis of the protest is known or should have been known. In other words, the protester's arguments are not challenging anything that was brought to light in the debriefing - everything was already known or should have been known prior to the debriefing.

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Guest Vern Edwards

Timeliness of the protest and the requirement for suspension or termination following a protest are different matters. The protest might be timely, depending upon its basis and when the contractor knew or should have know about it. However, at this point there can be no requirement for suspension or termination, because (1) notice of the protest from GAO came more than 10 days after contract award and (2) no debriefing was required because the request for debriefing was untimely. The fact that the government accommodated the untimely request is irrelevant.

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If it's a GAO protest, then change #3 to: "Did you receive notice of the protest from GAO within 10 days of award? If so, you must suspend performance (or override the automatic stay of performance). If not, then you need not suspend performance."

Your interpretation of "day" is correct.

Based on the facts you provided, the protest is untimely.

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Regarding the applicability of "calendar days" when it comes to a timely bid protest; I just wanted to point out that in the event a deadline falls on a weekend, federal holiday, or other day when GAO is closed, the deadline for a timely bid protest is extended to the next day on which GAO is open. (4 C.F.R § 21.0(d)). Certainly not the case in the scenario described by elguero but just something to keep in mind.

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2 thoughts:

first, props for providing a debriefing even though the request was not timely; and

second, even though something can be protested anytime to COFC,

with no formal timeliness limits,

the court does rely somewhat on GAO's rules for a sense of what is timely and and diligent in pursuit of the matter.

I personally see protests as generally a good thing, allowing sunshine into an otherwise closed system.

But I recognize that, even despite errors that may injure parties, the government does need to get on with its work.

The GAO timeliness requirements strike me as a reasonable balance between these competing values, openness/ accountability and keeping the government running.

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Guest Vern Edwards

brian:

What evidence do you have that the Court of Federal Claims relies "somewhat" on GAO's timeliness rules?

What evidence do you have that the court relies on GAO's timeliness rules to any extent?

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