Federal Circuit Clarifies Bid Protest Stay Timeliness Rules

Pillsbury Winthrop Shaw Pittman LLP

The U.S. Court of Appeals for the Federal Circuit confirms that a protester seeking to avail itself of the statutory “automatic stay” of performance in connection with a GAO bid protest must file that protest within five days after receiving its required debriefing, unless it timely submits additional enhanced debriefing questions.

TAKEAWAYS

  • The Competition in Contracting Act (CICA) mandates a stay of performance of a new federal government contract where a contractor files its bid protest at the Government Accountability Office (GAO) within five calendar days of receiving its required debriefing.
  • Since 2018, contractors have been entitled to “enhanced debriefings” in Department of Defense (DoD) procurements, including the right to submit written questions within two business days after receiving their written debriefings and to receive written answers to those questions.
  • Reversing a decision of the U.S. Court of Federal Claims (COFC), the Federal Circuit held that where a protester in a DoD procurement fails to submit written enhanced debriefing questions, it has only five calendar days after receiving its required debriefing to file its protest to receive the CICA stay.

We previously have discussed (here and here) the “enhanced debriefings” that DoD agencies have instituted for procurements conducted under Part 15 of the Federal Acquisition Regulation (FAR). These rules provide that a DoD agency “shall not consider the post-award debriefing to be concluded until the agency delivers its written responses to the unsuccessful offeror” and the “agency shall comply with the requirements of FAR 33.104(c) regarding the suspension of contract performance.” FAR 33.104(c), in turn, echoes the requirements of CICA, 31 U.S.C. § 3553(d)(4)(A), which provides that a protester is entitled to an automatic stay of performance if its protest to GAO is filed within the later of two dates: (1) “the date that is 10 days after the date of the contract award”; or (2) “the date that is five days after the debriefing date offered to an unsuccessful offeror for any debriefing that is requested and, when requested, is required.”

Last year, we covered the decision of the COFC in NIKA Technologies, Inc. v. United States, 147 Fed. Cl. 690 (2020), which held that, for procurements subject to DoD rules, the five-day filing clock to obtain an automatic stay of performance under CICA will not start running until two business days after a disappointed offeror receives its post-award debriefing. On appeal, the Federal Circuit reversed, holding that the five-day countdown begins to run after a disappointed offeror receives its requested debriefing.

COFC Decision

In NIKA Technologies, the Army Corps of Engineers provided the protester with a written debriefing on March 4, 2020, and included in the debriefing the option for the protester to submit additional questions related to this debriefing within two business days after receiving the debriefing. The letter stated that “[t]he [g]overnment will consider the debriefing closed if additional questions are not received within two (2) business days. If additional questions are received, the [g]overnment will respond in writing within five (5) business days ... [and] will consider the debriefing closed upon delivery of the written response to any additional questions.” The protester sent a letter to the Corps on March 5, 2020, noting that it had received the written debriefing the previous day and that it planned to follow up with the Corps by March 6, 2020, on any official debrief questions it might submit. On March 7, 2020, the protester informed the Corps that it did not have any debriefing questions.

The protester then filed a post-award bid protest at GAO on March 10, 2020. When the Corps subsequently indicated in a filing to GAO that it believed the protest filing to be untimely for the purposes of an automatic stay under CICA, the protester filed its complaint at the COFC challenging the Corps’ refusal to implement such a stay. Before the COFC, the Government contended that for an automatic CICA stay to apply, the protester was required to file its protest by March 9, 2020, arguing that since the protester did not submit any additional questions to the Corps after the written debriefing letter was received, the debriefing date was March 4, 2020, and the five-day clock began to run from that point. In contrast, the protester argued that its decision not to submit additional debriefing questions by March 6 meant that its debriefing was closed as of that date and, therefore, its protest filed on March 10 would be timely.

The COFC agreed with the protester, concluding that its GAO protest was entitled to an automatic stay under CICA. The COFC noted that the relevant statutory language in the 2018 National Defense Authorization Act includes the two business days for further questions as part of the debriefing. The Government appealed.

Federal Circuit Reverses

On appeal, the Federal Circuit reversed, holding “that the plain meaning of the statute is that the deadline in 31 U.S.C. § 3553(d)(4)(A) is five days after receipt of debriefing.” (Emphasis added). The Federal Circuit reasoned that the statute referred to “the debriefing date” in the singular, and that “[w]hile the statute mandates a two-day opportunity to ask questions, it mandates it ’after . . . debriefing,’ which means that the two-day period for questions occurs within the five-day window for filing a protest.” (Emphasis in original). The Federal Circuit stated, “when no additional questions are submitted, the ‘debriefing date’ is simply the date upon which the party receives its debriefing,” and the “five-day period . . . begins on the debriefing date, rather than two days later.” Thus, “[b]ecause NIKA did not supply notice of its protest at the GAO within five days of receiving its debriefing, we hold that it did not meet the deadline of 31 U.S.C. § 3553(d)(4)(A)(ii) for invoking the stay.”

The Federal Circuit’s recent decision provides significant clarity on the protest timelines applicable under DoD’s “enhanced debriefing” regime. A prospective protester of a DoD procurement should avail itself of its “enhanced” rights by preparing and submitting written questions about its debriefing within two business days after receiving the written debriefing. To the extent a protester fails to timely submit such questions, however, it must file any GAO protest within five days of receiving its required debriefing in order to obtain the important automatic stay of performance under CICA.

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DISCLAIMER: Because of the generality of this update, the information provided herein may not be applicable in all situations and should not be acted upon without specific legal advice based on particular situations.

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