Last April, the Court of Federal Claims issued a decision in NIKA Technologies, Inc. vs. United States telling potential protestors that they had an extra two days to file a protest under the enhanced Department of Defense (DoD) debriefing process. Last month, the Federal Circuit reversed that ruling.
Under the Competition in Contracting Act (CICA), a federal agency is required to stay contract performance if it receives a post-award bid protest from the Government Accountability Office (GAO) within five calendar days of a protestor’s debriefing. However, in March 2019, DoD implemented an enhanced debriefing process, which requires that post-award debriefings under FAR 15.506(d), must now provide two business days after the debriefing for the contractor to submit written questions on the debriefing. The offeror’s filing deadline for securing the stay of performance then becomes five calendar days after the agency provides the offeror written responses to its timely questions.
In NIKA Technologies, the protestor received its debriefing, but never submitted any written questions. The protestor argued, and the Court of Federal Claims shockingly agreed, that the clock for its timely protest/CICA stay started not from the date of its debriefing, but instead, from the date on which questions were due. The court reasoned that the two-day period in which to ask questions essentially extends the debriefing period by two days, regardless of whether the offeror ultimately submits any questions, and required GAO to issue the stay of performance.
The government appealed the decision to the Federal Circuit. Interestingly, NIKA Technologies eventually lost its protest on the merits at GAO and declined to participate in the appeal – essentially rendering the government’s case moot. Ordinarily, courts do not have jurisdiction over and thus will not adjudicate moot controversies. However, the Federal Circuit stated because this issue was “capable of repetition but evading review,” it had jurisdiction to decide the narrow issue of the timeliness of a protest. Specifically the Court stated:
The plain meaning of [31 U.S.C.] § 3553(d)(4)(A)(ii) is that the clock starts on the day that the bidder receives debriefing. The statute refers to “the debriefing date,” using the singular form of the noun. § 3553(d)(4)(A)(ii) (emphasis added). If Congress thought otherwise, it could have said “the end of the debriefing period,” but instead it said “the debriefing date.” This indicates that the proper interpretation is that the timer starts on the day that a bidder receives its debriefing, not two days afterward. It would be at odds with the plain meaning to interpret the statute to define “the debriefing date” as a day on which no actual debriefing occurred.
Thus, a protester’s five-day clock for filing a protest begins to tick on the day of the debriefing itself. That clock stops only if a protester submits written questions within two business days. If the protestor submits written questions, then the five-day clock starts over and starts to count from the date the government provides answers to those written questions.
Contractors should always take advantage of the debriefing process – including written questions. This process can provide valuable insight into whether and what to protest. Also, if the government provides only partial answers – follow with a written communication stating that you believe the debriefing process to still be “open” until such time as all of the questions are answered.