Diligently Pursue Your Right to a Debriefing or Risk Losing Your Right to Protest
Experienced Government contractors know the exception to the rule: a Government Accountability Office (GAO) protest must be filed within 10 days from the date the contractor knew or should have known the basis for the protest, whichever is earlier, but, if a debriefing is requested and when requested, required, the protest will be timely if it is filed within 10 days of the debriefing.
But what happens if you, the disappointed bidder, request the debriefing, and the agency does not respond to your request?
Contractor Receives Debriefing Response but Cannot Open It
Such were the circumstances in which Information Unlimited, Inc. (IUI) found itself, or so it thought. In this case, the Air Force issued its Small Business Enterprise Application Solutions RFP on September 28, 2017. IUI submitted a proposal.
On December 21, 2018, the agency emailed IUI and advised that it had been removed from the competition because its technical proposal was unacceptable. The email also notified IUI that it had three days to request a debriefing. IUI requested its debriefing the same day. The agency responded later that day, providing IUI its written debriefing via email as an attachment.
On February 4, 2019, the protester emailed the agency, stating that it had not received its debriefing. The agency responded the same day: "[y]ou were provided a pre-award debrief 21 Dec 2018."
On August 23, 2019, IUI again sent the agency an email indicating that it had not yet received its debriefing, and asked for a timeline. The agency responded the same day, in the same way it had earlier, stating that IUI had received its debriefing on December 21, 2018. IUI replied on August 26, 2019 that the only email it received was the agency’s email containing the non-selection notice, and that it had never received the written debriefing.
Bidder Submits GAO Protest Within 10 Days of Viewing Debriefing
On August 30, 2019 the agency sent an email to IUI that contained, as an attachment, the December 21, 2018 email that contained the written debriefing. The same day, the IUI replied that it was unable to open the two attachments that contained the pre-award debriefing. An Air Force official responded with a call to IUI, and explained the steps necessary to open the attachments, at which time IUI was able to view, presumably for the first time, the written debriefing.
IUI then filed its protest with GAO on September 9, 2019, within 10 days of viewing the debriefing.
GAO dismissed the protest as untimely. After noting that GAO’s bid protest regulations contain strict rules for the timely submission of protests, GAO pointed out that IUI first waited 45 days (between December 21, 2018 and February 4, 2019) to notify the agency that it could not open the attachment containing the written debrief, and when it still had not received its requested debriefing, IUI waited more than additional six months (February 4, 2019 to August 23, 2019) to follow up.
GAO Requires Protester’s Diligent Pursuit
GAO acknowledged IUI’s argument that it did not receive the written debriefing until August 30, 2019 and that IUI responded promptly to the agency’s emails. But GAO was nonetheless unmoved: "the fact remains that a protester has an affirmative obligation to diligently pursue information providing a basis for its protest."
Most would agree that IUI could and should have been more diligent in pursuing its protest and that the outcome here was reasonable. Nevertheless, this case is a good reminder that diligent pursuit of one’s protest, especially in the face of an agency that appears nonresponsive, is necessary to preserve one’s protest rights.
Had IUI filed a protest within 10 days of its receipt of the agency’s nonselection notice (December 21, 2018), the protest may have been dismissed as premature, but IUI would have preserved its right to file a protest after its debriefing, as well as the ability to trigger a stay of award and performance.
As the saying goes: "Equity aids the vigilant, not those who slumber on their rights."
We welcome your thoughts and comments.