A few months ago, we wrote about how the U.S. Court of Federal Claims (COFC) had defined when the protest clock starts running for a stay of contract performance pending a bid protest if the Department of Defense’s (DOD) enhanced post-award debriefing procedures are used. The case was NIKA Technologies, Inc. v. United States, and the issue involved when NIKA’s debriefing ended. The COFC ruled for NIKA, but the United States has now appealed to the U.S. Court of Appeals for the Federal Circuit. NIKA is not participating in the appeal, leaving the Department of Justice (DOJ) to go it alone. On December 9, 2020, the Federal Circuit heard an oral argument.
A disappointed offeror protesting to the Government Accountability Office (GAO) can obtain a stay of contract performance pending a protest as long it files the protest 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” (31 U.S.C. § 3553).
In 2018, Congress made changes to the debriefing rules in Section 818 of the FY-2018 National Defense Authorization Act (NDAA). Section 818 created an exception to the deadline to file a protest after a required debriefing by allowing “a disappointed offeror to submit, within two business days…, additional questions related to the debriefing,” which a military agency must answer within five business days (10 U.S.C. § 2305). Thus, for DOD procurements now, the five-day post-debriefing period for filing a protest and obtaining a stay of performance runs from the date the government responds to a disappointed offeror’s questions.
In February 2020, NIKA was not selected for a U.S. Army Corps of Engineers (USACE) multiple-award IDIQ contract. NIKA requested a debriefing, which it received in writing on a Wednesday. The debriefing told NIKA that it had two business days to submit follow-up questions and that the debriefing would be considered “closed if additional questions are not received within (2) business days,” i.e., on Friday. On Saturday, NIKA told the USACE that it had no more questions.
NIKA filed a GAO bid protest on the following Tuesday, six days after receiving the written debriefing but four days after it could have submitted follow-up questions but chose not to. The USACE did not stay contract performance, stating that NIKA filed the protest outside the five-day window. NIKA took the contract stay dispute to the COFC while the GAO protest continued separately.
At the COFC, the government argued that, because NIKA submitted no follow-up questions, the debriefing closed on Wednesday when the USACE gave the written debriefing. Thus, any protest had to be filed within five days of that date, i.e., the following Monday. The COFC disagreed, holding that the debriefing date was “the last day of NIKA’s debriefing process,” the Friday NIKA could have submitted follow-up questions, not the Wednesday that NIKA received the written debriefing. The COFC stated that the statute plainly included two business days to submit additional questions, and the USACE’s own interpretation, according to its written debriefing, was that the debriefing had not closed the day the debriefing was written. The COFC enjoined the USACE from issuing any task orders pending the resolution of the GAO protest.
On June 5, 2020, the GAO denied NIKA’s protest. On June 25, 2020, DOJ filed a notice of appeal of the COFC decision on the contract stay issue. NIKA is not participating in the appeal.
What has happened so far in the appeal?
On December 9, Chief Circuit Judge Prost, Judge Lourie, and Judge Hughes heard the government’s oral argument. DOJ frames the question as one of statutory interpretation, which it contends the COFC got wrong by extending the debriefing by two days to accommodate follow-up questions that never came. DOJ argues that, because NIKA asked no follow-up debriefing questions, the DOD’s enhanced debriefing procedures, which track the amended statutory language, did not apply, so the debriefing date was not extended beyond the date NIKA received the written debriefing. Thus, to get a stay of performance, NIKA should have been required to file its GAO protest within five days of the date of the written debriefing, not within five days of the date by which it could have asked questions but did not. All three judges on the panel asked about the USACE’s statement in the written debriefing that apparently kept the debriefing open for at least two days to allow follow-up questions, with Chief Judge Prost asking whether it was not at least ambiguous. DOJ responded that the argument about the contents of the letter was raised and abandoned at the COFC and that the statute governed in the event of any confusion.
In addition, in its appellate brief, DOJ had identified a potential mootness issue because the COFC injunction is no longer in effect and the GAO protest is over but contended that because the legal issue is capable of repetition and likely to evade review, it was not moot.
What is the takeaway?
It is possible that the Federal Circuit determines that the case is moot. The Federal Circuit could also conclude that the language in the USACE’s debriefing letter, rather than the statute, was dispositive about the date of the closing of the debriefing and that any holding on the appeal is limited to the facts of this case. Absent of those scenarios, the case is likely to provide some certainty one way or the other regarding when a DOD enhanced debriefing closes if the disappointed offer does not ask any follow-up questions after a required debriefing. Of course, because DOJ argued on its own, no one posed the obvious hypothetical. If the Federal Circuit agrees with the government’s position, isn’t the way out of the problem for a prospective protester who wants more time to simply ask a question — any question — within the two-day follow-up period just to force the agency to answer it and, thus, run the clock some more?