Yet another unwary government contractor has been turned away by GAO because it failed to file its protest on time. Unsuccessful offerors that contest evaluation issues (rather than solicitation defects) have 10 days to file protests at GAO. That generally applicable 10-day deadline is tolled when a “debriefing” is required in FAR Part 15 (and certain Part 16) procurements. But that tolling rule doesn’t apply when the FAR only requires that the agency provide an “explanation” to disappointed offerors (e.g., in FAR Parts 8, 12, and 13 procurements)—and does not mandate a “debriefing.” GAO’s decision in Gorod Shtor illustrates this rule by dismissing the protest of an offeror that fell into this bid protest trap.
Gorod Shtor wanted to sell drapery making and installation services for the U.S. embassy in Moscow. Gorod Shtor submitted a proposal for an IDIQ contract with the Department of State. Importantly, the RFQ was issued as a commercial item acquisition (under FAR Part 12) in which simplified acquisition procedures were applied under FAR Subpart 13.5. Award was to be made on a lowest-priced, technically acceptable basis.
The Agency’s award notice informed the disappointed offeror that the contract was awarded to a competitor, which Gorod Shtor believed did not meet certain RFQ requirements. The notice also stated “[i]f you desire a debriefing, please refer to FAR [] 52.212-1(l)” which lists the types of information to be provided by a debriefing but does not create a right to a debriefing. Gorod Shtor requested a debriefing and was informed of “the reasons why the agency had found the vendor to be technically unacceptable.”
The statutory requirements applicable to GAO bid protests impose a jurisdictional 10-day deadline that runs from the date when “the basis of protest is known or should have been known (whichever is earlier).” That generally applicable limitations period is tolled by GAO’s protest regulation, 4 C.F.R. § 21.2(a)(2)—but only for challenges to awards in which “a debriefing is requested and, when requested, is required.” Such awards occur under FAR Part 15 (and with respect to certain awards under FAR Part 16).
Although the agency’s and Gorod Shtor’s communications talked in terms of a “debriefing,” the relevant part of FAR Part 13 does not mandate a “debriefing.” Instead, the FAR says that “[i]f a supplier requests information on an award that was based on factors other than price alone, a brief explanation of the basis for the contract award decision shall be provided.” The distinction between the “brief explanation” to be provided under FAR Part 13 and a “debriefing” required under FAR Part 15 creates a trap into which Godor Shtor’s protest fell.
As GAO explained, the “brief explanation of the basis for the contract award” required by FAR Part 13 does not toll the limitations period in the same way that a mandatory debriefing does. (Notably, similar “explanations” are provided under FAR Parts 8 and 12.) As such, Gorod Shtor’s receipt of a “debriefing” that the agency was not required to provide did not toll the 10-day statute of limitations—which ran from the date of the award notice. The fact that the agency provided a “debriefing” to Gorod Shtor was surely confusing to the disappointed offeror relative to the running of the limitations period—but it could not expand GAO’s statutory and regulatory requirements that barred the protest.
One can reasonably question whether the regulations should mandate debriefings for more procurements—as good debriefings reduce protest risk (albeit with increased burdens on an agency). But under the current regulations, GAO’s decision correctly reveals a trap for the potential protester in FAR Part 8, 12, 13, and some Part 16 procurements.