One might forget these days that bid protests are still going on. But they are, and a recent Court of Federal Claims (COFC) case provides insight into the timeliness of protests for the purpose of obtaining a stay of contract performance when filed under the enhanced debriefing procedures of the Department of Defense (DOD).
Under the Competition in Contracting Act (CICA), when a disappointed offeror files a protest at the Government Accountability Office (GAO), the contracting agency must, with several exceptions, stay contract performance pending protest resolution (31 U.S.C. § 3553). Normally, a protest is timely filed for a CICA stay if it is filed by the later of “10 days after the date of the contract award,” or “the date that is 5 days after the debriefing date offered to an unsuccessful offeror for any debriefing that is requested and, when requested, is required.”
The 2018 National Defense Authorization Act (NDAA) added a subsection to the statute governing military procurement debriefings so that there is now “an opportunity for a disappointed offeror to submit, within two business days after receiving a post-award debriefing, additional questions related to the debriefing,” which a military agency must answer within five business days (10 U.S.C. § 2305). No similar provision exists for civilian agencies. The DOD implemented this policy by issuing a class deviation to the FAR 15.506 debriefing procedures, which established enhanced debriefing procedures tracking the 2018 NDAA amendment. Thus, after a disappointed offeror receives answers to its enhanced debriefing questions, the debriefing is closed. If an offeror files a GAO bid protest within five days of receiving the agency’s answers to the additional debriefing questions, then the agency shall stay contract performance pending protest resolution.
The COFC recently decided when the protest clock starts running for a CICA stay under the DOD’s enhanced debriefing procedures. In NIKA Technologies, Inc. v. United States, NIKA timely requested a debriefing, which the U.S. Army Corps of Engineers (USACE) provided in writing on a Wednesday. Under the enhanced debriefing procedures, the USACE gave NIKA two business days to submit additional debriefing questions, stating that the debriefing would be considered “closed if additional questions are not received within (2) business days.” Thus, NIKA had until Friday to submit additional questions, if any. On Saturday, NIKA told the USACE that it had no more questions. NIKA then filed a bid protest at the GAO on Tuesday, i.e., six days after receiving the written debriefing but four days after the date that it could have submitted supplemental debriefing questions but chose not to. When the USACE refused to stay contract performance, NIKA took the CICA stay issue to the COFC while the GAO protest continued separately. (The GAO decision on the merits of the protest is not due until June.)
The COFC decision is a bit unclear, but it appears that the government argued that, because NIKA submitted no supplemental debriefing questions, then there was only one debriefing, and that was the one issued in writing. In the USACE’s view, any protest had to be filed within five days of that date to require a CICA stay.
The COFC rejected the government’s argument, instead holding that the debriefing date was “the last day of NIKA’s debriefing process.” Here, that was the Friday NIKA could have submitted follow-up questions, not the Wednesday NIKA actually received the written debriefing. The judge stated that the 2018 NDAA language plainly included two business days to submit additional questions, and the USACE’s interpretation when it provided the written debriefing was that the debriefing had not closed that day.
What is the takeaway?
Although the NIKA decision does not bind the entire court, the analysis is likely to be seen as persuasive. Thus, disappointed offerors competing for military contracts can take some comfort that they may take full advantage of the extra time provided by the DOD’s enhanced debriefing procedures as outlined in the 2018 class deviation memorandum.