As in prior years, the upcoming end of the federal fiscal year will be marked by a flurry of contract and task order awards, as federal agencies busily obligate remaining fiscal year 2023 appropriated funds while still available. Contractors who have been waiting for decisions on multiple proposals may suddenly receive award notices on several important opportunities in rapid succession.
To help contractors prepare, this alert reviews the deadlines and procedures for post-award protests for requesting debriefings or brief explanations of awards and for preserving and invoking an offeror's right to protest award decisions by agencies or size or status eligibility for competitors for set-aside opportunities. We hope this alert will help contractors gather information, assess protest issues and options, and ultimately make the business decision on whether to pursue a protest.
Our focus here is on post-award protests – protests that challenge an agency's decision to award or not award a contract, task order or blanket purchase agreement (BPA), or a protest that challenges an intended awardee's small business size or socioeconomic status eligibility for a set-aside award. Because awards made around the end of the fiscal year involve proposals or quotations that were submitted weeks or months ago, we will not address pre-award protests of improprieties in solicitations, which must be filed before the due date for proposals.
Gather More Information About the Agency's Award Decision by Requesting a Debriefing or Brief Explanation of the Award
The first step to developing protest options is requesting more information from the agency about its award decision. As set forth below, there are different opportunities to seek more information depending on the procurement procedure utilized for the contract, order or BPA at issue. It is important to understand these procedures and their various deadlines, as they tie directly to the deadlines to file a timely protest and trigger the automatic stay of contract performance discussed below.
During the time frame between the receipt of information and the deadline to protest and trigger the automatic stay, the contractor's leadership may confer with protest counsel to assess potential protest grounds, protest venues (i.e., agency-level, Government Accountability Office (GAO) or the U.S. Court of Federal Claims (COFC)), the potential relief from a successful protest (including voluntary corrective action by the agency) and how the procurement process might unfold after a successful protest.
The following table summarizes the opportunity to obtain more information about the award decision and how to make the request (including deadlines) for a variety of procurement procedures under the Federal Acquisition Regulation (FAR):
Understand the Time for Making a "Go/No Go" Decision to Protest an Agency's Award Decision
When information is received – whether from a required debriefing, brief explanation or otherwise – the protest-related deadlines are ticking away. This is a complex and unforgiving area of protest practice, as the deadlines depend on whether or not a debriefing is required. Additionally, the available protest venues depend upon the nature of the award (i.e., contract, task order under FAR Part 16, task order under the FSS Program) and, in the case of FAR Part 16 task orders, the value of the award. The deadlines also vary by protest venue: agency-level, GAO or COFC. These factors drive the contractor's leadership to assess available information and potential protest grounds and make the "go" or "no go" decision about whether to invest in the protest process.
It is also important to understand that there are two deadlines associated with agency-level and GAO protests: 1) the deadline to file a timely protest and 2) the deadline to file a protest that triggers the automatic stay of contract performance under the Competition in Contracting Act (Automatic Stay).
The following table summarizes the protest and Automatic Stay deadlines for the various types of contract awards:
Set-Aside Awards: Time Frames to Protest the Intended Awardee's of Size or Socioeconomic Eligibility
In addition to filing protests challenging an agency's evaluation of proposals and award decisions, a disappointed offeror can challenge the size or socioeconomic eligibility of the intended awardee of a set-aside contract, task order or BPA with the U.S. Small Business Administration (SBA). The venue for "size" or "status" protests is different from the venues available to hear protests of award decisions, and the deadline to protest is different as well – and completely unaffected by any debriefing requirements.
These different deadlines and procedures for size and status protest compel a contractor's leadership to act more quickly to gather available information about the intended awardee's eligibility and make the "go" or "no go" decision about protesting.
The following table summarizes the deadline and recipient of a protest challenging the announced awardee's size or socioeconomic status for a set-aside award:
We all have heard the old adage that time is money. This takes on new meaning when applied to the strict, complicated and unforgiving deadlines associated with post-award protests and size/status protests in federal procurements. Once the Notice of Unsuccessful Offeror is received, the clock starts for gathering information about protest options and strategy and filing a timely protest that can also have the effect of, when available, preventing performance until the protest is resolved.
We hope this alert provides a refresh on the basic deadlines for debriefings, brief explanations, agency-level protests, GAO protests, COFC protests, and size and status protests ultimately decided by SBA. The application of these deadlines to particular situations is complex and treacherous. It is a good idea to consult with a skilled federal procurement protest lawyer to ensure that the decision whether to protest is made thoughtfully and timely.