GAO Decisions Remind Us: Timely Filing of a Protest is Strictly Construed

Recent GAO decisions serve as important reminders that timely filing of a protest is strictly construed. As Department of Defense contractors and agencies are adopting the enhanced debriefing rules, there has been some confusion—by agencies and contractors—as to what constitutes a timely protest. In a recent protest, the GAO addressed these timing issues and clarified the obligations of contractors and agencies under the DOD’s enhanced debriefing rules.

Contractor State Women Corporation (“SWC”) protested the award for construction of a facility in Afghanistan issued by the Corps of Engineers (the “Agency”). State Women Corporation, B-416510 (July 12, 2018). On May 16, the Agency notified SWC that it was not the awardee, at which time SWC requested a debriefing. The Agency provided a written debriefing to SWC on May 28, and included in the initial debriefing an invitation for SWC to submit additional questions relating to the debriefing pursuant to the newly implemented Enhanced Post Award Debriefing program.

As discussed in a previous blog post here, the enhanced debriefing process is applicable to DoD contracts and allows disappointed offerors the opportunity to submit additional questions to the agency no later than two business days after receiving the agency’s initial debriefing. The Agency then has five days within which to respond to these additional questions. The postaward debriefing period can conclude only after the agency delivers its written responses to the protestor.

Here, in response to the Agency’s May 28 initial debriefing, SWC timely submitted its supplemental debriefing questions on May 28. The Agency responded to these questions on June 1 and included within its response the statement: “The debrief is hereby concluded.” Nonetheless, SWC had additional questions related to the debriefing and award explanation it had received from the Agency and, on June 8, SWC submitted these questions to the agency. The Agency responded to this second set of supplemental questions on June 20. Unsatisfied with the explanation, SWC protested the award to the GAO by filing dated June 24. The Corps moved to dismiss SWC’s protest on the basis that it was untimely, arguing that any protest was required to have been filed by June 6 to satisfy the GAO’s bid protest regulation.

Agreeing with the Corps that the protest was untimely, the GAO granted the Agency’s request for dismissal. However, in a rebuke to the Agency, the GAO stated that the Corps was “mistaken” in its interpretation of the timeliness requirements of the enhanced debriefing process. The GAO clarified that the protestor had ten (10) days from the conclusion of the debriefing to file its protest – not the five days identified by the Corps. As such, SWC had until June 11 to file its protest and satisfy the GAO’s timeliness regulations. The GAO further clarified that the 5 day requirement referenced by the Government related to the Government’s obligation to suspend contract performance under the Competition in Contracting Act (“CICA”), not the contractor’s obligation to timely file. However, it is important to note that while SWC technically had until June 11 to file its protest, preservation of the CICA stay is often a paramount goal for contractors. Accordingly, filing within 5 days is often in a contractor’s best interest.

A summary of the protest debriefing and filing deadlines for FAR Part 15 Procurements, as clarified by the GAO in SWC, follows:

Another recent GAO protest highlights just how unforgiving the mandate for strict compliance with the timeliness requirements can be. CWIS, LLC, B-416544 (July 12, 2018). On June 19, HUD issued a justification and approval on fbo.gov providing the legal basis for its decision to enter into a sole-source contract valued at $18m. On June 29, the 10 and last day on which the basis for this award decision could be protested, CWIS attempted to file a protest with the GAO using its new electronic docketing system. Counsel for CWIS e-filed the protest at 5:29 pm, one minute before the closing time for protests for that day. Unfortunately, the transmission was unsuccessful and CWIS received an error message. CWIS then promptly filed its protest by email through the GAO’s protest account, by message time stamped 5:46 pm on June 29. In dismissing the protest for failure to comply with the GAO’s strict timeliness rules, the GAO held that because the protest was received after 5:30 pm, it did not constitute a “filing” until the next business day, July 2, and accordingly, did not comply with the 10 day filing requirement.