Unforgiving Bid Protest Timelines

In yet another warning to contractors regarding the unforgiving bid protest timelines, the GAO recently issued a decision granting an agency’s request to dismiss a protest on the basis that the contractor failed to timely request a debriefing and therefore was not eligible to the extended deadline for filing its protest. Exceptional Software Strategies, Inc., B-416232 (July 12, 2018). Though seemingly uncontroversial, the facts reveal a particularly harsh outcome for the contractor.

Exceptional Software Strategies, Inc., (ESS) received written notice on Thursday, March 15, 2018, that it was excluded from the competitive range by the National Security Agency (“NSA”) for a contract to provide presentation and visualization capabilities. The notice set forth the basis for the agency’s decision to exclude ESS from further consideration and included detailed information regarding the source selection evaluation board’s findings leading to the exclusion of ESS. On Monday, March 19, the third day (given the intervening weekend), ESS requested a debriefing. ESS’s request was submitted by email and time stamped 4:59 p.m. In response to ESS’s request, NSA provided ESS with the requested debriefing on April 2. There is no indication that NSA raised any issue with the timing of ESS’s debriefing request or provided any notice that the debriefing was not required and was merely a courtesy. On April 6, ESS filed a protest of its exclusion from the competitive range with the GAO. In response to the protest, NSA requested that the GAO dismiss the protest as untimely based on the argument that ESS failed to timely request a debriefing and consequently, because the debriefing was not required and was simply a “courtesy,” the debriefing did not toll the protest deadline.

Granting NSA’s request for dismissal, the GAO issued a decision highlighting just how strict and unrelenting the protest deadlines can be. The GAO explained that, in accordance with FAR § 15.505(a)(1), an agency is required to provide a debriefing if a contractor requests one in writing within three days of the agency’s notice to the contractor that it is excluded from the competitive range. However, if a contractor fails to timely submit its debriefing request, the agency may still provide a debriefing, but the debriefing is no longer “required,” and, if not required, does not toll the protest deadline. Applying this rule, the GAO calculated that because ESS learned of its exclusion from the competitive range on Thursday, March 15, the deadline for submitted its request for a debriefing was March 19. While many would assume that a request submitted at 4:59pm would be timely, the GAO further held that “pursuant to the FAR [§ 33.101], ‘unless otherwise stated, the agency close of business is presumed to be 4:30 p.m., local time.’” Thus, because ESS’s request was sent after 4:30 and there was no indication in the record that NSA office hours were other than as presumed by FAR § 33.101, the debriefing request was deemed to have been made on the next business day, March 20.

The message is clear:  contractors beware and do not delay in requesting a debriefing and filing your protest—the GAO will strictly enforce the protest deadlines and there is no room for error by a contractor. Additionally, if you seek to take advantage of the extended protest deadline granted as a result of a “required debriefing,” ensure that your debriefing is deemed to be “required” by the Agency.