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Closing Time For a Required Debriefing

What Was the Closing Time For a Required Debriefing?  

15 members have voted

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  1. 1. What did GAO say was the cutoff time for the required debriefing mentioned in FAR 15.505(a)(1)? 

    • 5:00 PM Local Time
      4
    • Midnight Local Time
      2
    • 4:30 PM Local Time
      9
    • Noon Local Time, if it was on a Friday
      0


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A DoD agency advised an offeror that its proposal was excluded from the competitive range.  In accordance with FAR 15.505(a)1 [see quote box] the offeror submitted a request for debriefing:

Quote

15.505 Preaward debriefing of offerors.

Offerors excluded from the competitive range or otherwise excluded from the competition before award may request a debriefing before award (10 U.S.C. 2305(b)(6)(A) and 41 U.S.C. 3705).

(a)(1) The offeror may request a preaward debriefing by submitting a written request for debriefing to the contracting officer within 3 days after receipt of the notice of exclusion from the competition.

The offeror submitted a written request for debriefing to the contracting officer within the 3 days after the offeror was notified and the agency received the request at 4:59 PM  local time of the 3rd day.  Nothing in the solicitation, nor elsewhere, designated the business hours of the DoD agency.

The offeror claims it met the cutoff time for a required debriefing; the DoD agency told the offeror it didn't.

What did GAO say was the cutoff time for the required debriefing mentioned in FAR 15.505(a)(1)? 

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I made a slight modification to the protest information to provide for simplicity in the poll.  That was the 4:59 PM time.  The protestor requested a debriefing at 4:59 and the agency received it later.  

I didn't like GAO's decision but Part 15 did lead us to Part 33. 

Quote

15.501 Definition.

“Day,” as used in this subpart, has the meaning set forth at 33.101.

The decision is Exceptional Software Strategies, Inc, B-416232, July 12, 2018  (see p. 5).  Below are a few excerpts.

Quote

Although ESS requested a debrief via email on Monday, March 19, the email was delivered after close of business at the agency.  More specifically, the record reflects that ESS sent its Monday email at 4:59 p.m., and that NSA received the message at 5:24 p.m. Response to Dismissal Request, exh. A, Debriefing Request, Mar. 19, 2018 (4:59 p.m.); Dismissal Request, exh. 1, Debriefing Request, Mar. 19, 2018 (5:24 p.m.). Pursuant to the FAR, “unless otherwise stated, the agency close of business is presumed to be 4:30 p.m., local time,” and documents received after close of business are considered filed as of the next day. FAR § 33.101.

* * * * *

Here, nothing in the solicitation, or elsewhere in the record, designates the business hours for NSA; as such, in our view, the 4:30 p.m. deadline applies. Accordingly, ESS’s 4:59 p.m. debriefing request is considered filed on the next business day, Tuesday, March 20. Because March 20 is more than 3 days after ESS was notified of its exclusion from the competitive range, the debriefing request was not timely made.

* * * * *

The protester counters that the 4:30 p.m. close of business time stipulated in the FAR should not apply here because NSA “operates 24-7” and, according to ESS, the FAR provision that dictates a 4:30 closing time “has no relevance to debrief requests.” Response to Dismissal Request at 2-3. In this respect, ESS apparently interprets the 3-day period (to request a debriefing) as ending at midnight on the third day. See id. at 3 (arguing that “there is no ‘hour’ requirement for the submission of a debriefing request”). After careful consideration, in our view, such a result does not withstand scrutiny.

In this regard, the FAR defines “[f]iled” as the “complete receipt of any document by an agency before its close of business.” FAR § 33.101 (emphasis added). The definition further provides that unless otherwise stated, “close of business is presumed to be 4:30 p.m., local time.” Id. First, as stated above, the submission of a written request to an agency is required by the FAR in order to generate a required debriefing. We see no basis to conclude that this required written request is not a filing, as contemplated by the FAR. A government agency is not required to receive and review filings after its close of business, including filings such as debriefing requests from outside parties. Indeed, the FAR consistently applies a 4:30 p.m. default close of business time for government agencies.6 See FAR §§ 15.208(a) (stipulating 4:30 p.m., local time, as the default time for receipt of proposals), 14.304 (stipulating 4:30 p.m., local time, as the default time for the submission of bids). Notably, the protester has cited to no provision or regulation that requires a government agency to accept, as timely, any submission filed after the close of business.

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