At the outset, let’s concede that it’s generally a good thing when contracting officers are open about their procurement processes and willing to share feedback.
However, companies must be aware that just because an agency is answering your questions, does not necessarily mean your debriefing is still open for the purposes of protest timeliness. A protester recently learned this harsh lesson when GAO dismissed its protest.
Enhanced Debriefings Create a Moving Protest Deadline
Since the Department of Defense started giving enhanced debriefings a few years ago, bidders have had the right to ask questions as part of their debriefing, which has generally been a great success at helping unsuccessful offerors learn how to improve their approach for the next procurement—which is theoretically the point of debriefings, after all.
But it has caused some confusion. The Government Accountability Office rule is that a protest is not due until 10 days after a required debriefing closes. The debriefing does not legally close until the offeror has had the chance to ask questions and, if asked, receive answers. In fact, a protest that is filed before the close of a required debriefing will be dismissed as premature.
These questions are often asked and answered in writing, which can extend a debriefing days, weeks, maybe even months. That means, however, that the close of the debriefing and the corresponding bid protest deadline are moving targets that the offeror has no control over.
Continuing to Talk May Not Extend a Debrief
In K&K Industries, Inc., the protester had sought to win a contract from the Army Corps of Engineers to renovate a historic barracks building at Fort Riley, Kansas. In the protest, it argued that the evaluation was unreasonable, unequal, and resulted in a flawed best-value decision.
About midway through the protest process—after the agency report and comments—without being asked, GAO suddenly told the parties it was considering dismissal and asked them to file briefs on the issue. The question was, essentially, when did K&K’s debriefing close?
Here’s the timeline:
The Corps had informed K&K that it was not the awardee on September 28, 2021. The company asked for and received a debriefing in writing on October 13. At that time, the Corps told K&K it would provide the required redacted copy of the source selection decision document (“SSDD”) later, which it did on October 22. The written debriefing also told K&K that it could ask questions after it received the SSDD. K&K timely asked questions on October 25.
The Corps responded to the questions on November 17. The response explicitly said, “This concludes your written debriefing.” Two days later, K&K sent another round of questions, which the Corps also answered on November 23. In its response, it offered K&K the chance to ask more questions by December 1 and said, again, that this concluded the written debriefing. One day later, K&K sent more questions. The Corps answered those questions on December 13 and said that those answers concluded the “extended” debriefing.
K&K filed its protest within the 10 day window after December 13. K&K therefore felt its debriefing closed when the last round of questions were answered. And the agency obviously did too because it didn’t ask for dismissal. GAO brought up the idea of dismissal on its own after the merits-based briefing was already done.
Given the opportunity, the agency argued that the debriefing closed when it sent its first set of answers back to K&K on November 17. Remember, that response had said, “This concludes your written debriefing.”
GAO wrote in its decision that enhanced debriefings entitle an offeror to “one round of required questions and answers only.” But, an agency can extend the debriefing by creating ambiguity.
GAO ultimately determined that because the second round of answers unambiguously closed the debriefing and then offered to answer more questions outside of the debriefing process. Thus, according to GAO, the debriefing closed at least by November 23, making a protest due no later than December 3. It dismissed the protest as untimely.
Lesson learned?
So what’s the takeaway? It’s merely this: You may think a debriefing is open, and the agency may even think a debriefing is open. But when in doubt, file the protest. The worst that can happen is that GAO will rule it premature and dismiss it without prejudice, meaning it can be refiled after the debriefing officially closes.