The Department of Defense (DoD) enhanced post-award Debriefing requirements, contained in Section 818 of the National Defense Authorization Act for Fiscal Year 2018 (NDAA), have been a large topic of conversation this past year. In January 2018, our Government Contracts team detailed the specifics of these new requirements, which includes, among other things, the mandatory question and answer period for debriefings. On March 22, 2018, DoD issued a class deviation letter titled “Enhanced Post-award Debriefing Rights,” (Enhanced Debriefing Rules) which implements the question and answer period requirements. Notably, however, the Enhanced Debriefing Rules do not address the other new requirements in Section 818 of the NDAA, such as those involving the release, under certain circumstances, of redacted source selection award determinations.
The DoD’s Enhanced Debriefing Rules provide that “in accordance with [FAR] 15.506(d), contracting officers shall include in the debriefing information provided to unsuccessful offerors an opportunity to submit additional questions related to the debriefing within two business days after receiving the debriefing.” If an offeror timely submits additional questions, the agency must provide written responses within five days, and the debriefing is not concluded until the agency delivers the written responses. Additionally, the Enhanced Debriefing Rules state that the agency will suspend performance or terminate an awarded contract when a protest is filed at the GAO five days after a debriefing date and no additional questions are raised, or five days after the agency provides written responses to an unsuccessful offeror’s submitted questions related to the debriefing.
The new timelines initially appeared to be pretty straightforward. However, as evidenced by the GAO’s recent decision, State Women Corp., B-416510, July 12, 2018, 2018 CPD ¶ 240, certain questions remained to be answered. State Women Corporation (SWC), an unsuccessful offeror for a two-phase design-build procurement administered by the United States Army Corps of Engineers (USACE) under FAR parts 15 and 36, received a written debriefing letter on May 28, 2018. In that letter, the contracting officer informed SWC that pursuant to the Enhanced Debriefing Rules, SWC had two days to submit additional questions related to the debriefing. SWC took advantage of this opportunity and timely submitted additional questions. On June 1, 2018, USACE provided SWC a written response to those questions and indicated that “the debrief is hereby concluded.” However, rather than file a protest at the GAO, SWC submitted additional follow up questions to USACE several days later. Interestingly, USACE responded to this second set of debriefing questions on June 20, 2018. SWC filed a protest at the GAO on June 24, 2018, arguing that the protest was timely because it was filed within five days of receiving the second round of written responses. USACE and the GAO disagreed.
According to GAO’s strict regulations on timeliness, protests must be filed within ten days “after the basis of protest is known or should have been known. . . with the exception of protests challenging a procurement conducted on the basis of competitive proposals under which a debriefing is requested, and when requested, is required.” When a required debriefing is requested, a protest must be filed within ten days from when the debriefing was held. Thus, the GAO in State Women Corp. considered whether the debriefing closed on June 1 – the date that USACE provided written responses to SWC’s first round of debriefing questions – or on June 20 as SWC argued. Although USACE responded to SWC’s second round of debriefing questions, the GAO found that nothing in FAR 15.506(d) or the Enhanced Debriefing Rights entitles unsuccessful offerors to multiple rounds of post-award debriefing questions. The GAO also noted that USACE’s June 1 responses unambiguously stated that debriefing had concluded upon providing those responses. Thus, the debriefing concluded on June 1, despite USACE answering SWC’s second round of debriefing questions at a later date. Therefore, the time for submitting a timely protest to the GAO began to run from June 1.
USACE also argued that the Enhanced Debriefing Rules mandated that unsuccessful offerors could not file a protest at the GAO any later than five days after receiving written responses to debriefing questions, irrespective of the GAO’s timeliness rules. Rejecting this argument, and clarifying that the GAO’s timeliness rules had not been modified, the GAO held that SWC had ten days, not five, from June 1 to timely file its protest. The GAO explained that the five day timeline referenced in the Enhanced Debriefing Rules reflects the agency’s mandatory stay obligations under the 2018 NDAA’s change to the Competition in Contracting Act (CICA). The agency is now required to implement a mandatory stay if the unsuccessful offeror files a protest at the GAO within five days after receiving the agency’s written responses to submitted debriefing questions. While SWC would not have benefited from a mandatory stay if it filed its protest after June 6, pursuant to the GAO’s timeliness rules, it had until June 11 to timely file its protest.
Consequently, State Women Corp. provides useful guidance on filing deadlines to those contractors taking advantage of the enhanced debriefing opportunities.