GAO Says Contractors Must “Diligently Pursue” Agency Debriefing or Potentially Lose Right to Protest
The Government Accountability Office (GAO) recently issued a decision holding that a bidder’s failure to “diligently pursue” its request for a debriefing rendered its protest untimely.
GAO’s bid protest regulations are strict about the time in which a contractor can file a protest. If the protest is alleging improprieties in a solicitation it must be filed prior to bid opening or the time established for receipt of proposals. In all other protests, a disappointed bidder must file its protest no later than 10 days after it knew or should have known the basis for the protest. However, an exception to these rules exists when a debriefing is required and timely requested. When this is the case, a contractor must file no later than 10 days after the debriefing concludes to be considered timely filed.
However, in Information Unlimited, Inc., B-415716.40, the GAO warned that a protestor must take some affirmative steps to promptly receive their debriefing in order to ensure a subsequent protest is timely. Information Unlimited, Inc. (IUI) submitted a proposal to the Air Force and on December 21, 2018 IUI was notified that its proposal had been removed from competition. The same day IUI acknowledged the agency’s email and requested a debriefing. Later that day, the Air Force provided IUI its debriefing as an email attachment. Apparently IUI did not receive the debriefing. IUI attempted twice to follow up with the agency—once on February 4, 2019 (over a month after its initial request for a debriefing) and again on August 23, 2019 (about 8 months after its initial request). IUI finally received the debriefing after its second email, and it filed a protest within 10 days after that.
Although IUI timely filed its protest within 10 days of when it received the debriefing, it was still about 8 months after the debriefing was initially requested. GAO found that the protest was untimely because IUI waited so long to contact the agency and follow up about the debriefing. In its decision, the GAO wrote that a protestor cannot passively await information regarding its protest and must diligently pursue the information on which a protest is based—which includes a debriefing. Because IUI waited 45 days to follow up with the agency and then 6 more months before it contacted the agency again, GAO held that it did not satisfy its affirmative obligation to diligently pursue information that provided the basis for its protest.
This decision indicates that a contractor should take affirmative steps in order to ensure timely receipt of its debriefing. Simply requesting the briefing was not enough to satisfy IUI’s obligation to “diligently pursue” information related to its protest. Although the 8-month delay in Information Unlimited is atypical, contractors must be aware that they have an affirmative duty to make sure they receive a debriefing in a timely fashion.
It remains to be seen how this rule may affect a contractor’s obligations as it does not provide a bright line standard. What amount of delay is too much? What will satisfy a contractor’s obligation to “diligently pursue”? For now, contractors should do more than simply request a debriefing but promptly and repeatedly, within reason, to follow up with the agency if the circumstances indicate that a miscommunication may have occurred. Otherwise, an agency may rely upon Information Unlimited to seek a dismissal when the facts are less unusual.