No questions, no stay. The United States Court of Appeals for the Federal Circuit recently ruled on the interplay of debriefings and automatic stays. In NIKA Technologies v. United States, the Federal Circuit reversed a Court of Federal Claims (“COFC”) decision requiring an automatic stay of contract performance pursuant to the Competition in Contract Act (“CICA”) that had been previously denied by the Government Accountability Office (“GAO”) as untimely. 31 U.S.C. § 3553(d) requires the automatic stay of contract performance when a disappointed offeror files a protest within ten (10) days of the contract award or within five (5) days of a required debriefing. NIKA dealt with the latter of these deadlines and the impact of the DoD “enhanced post-award debriefing rights” on the stay deadline.
In the 2018 National Defense Authorization Act, Congress required the DoD to issue regulations providing for enhanced post-award debriefing rights for certain DoD procurements. The resulting enhanced debriefing rights permit a disappointed offeror to ask follow-up questions in the two (2) business days after receiving a debriefing with the debriefing being “held open” until the government provides written responses to the questions asked. DoD implemented the enhanced post-award debriefing rights by issuing this 2018 Department of Defense Class Deviation from the FAR.
In NIKA, the disappointed offeror filed its GAO bid protest of the Army Corps of Engineers award decision six (6) days after the agency provided a debriefing. The contractor had elected to not ask follow-up questions in the two (2) business days after the debriefing as permitted by the enhanced debriefing rights. The GAO found NIKA’s protest to be timely but declined to implement the CICA automatic stay of contract performance because the protest had not been filed within five (5) days after the debriefing. To fight that decision, NIKA brought an action at the COFC, arguing that it was entitled it to an additional two (2) days to file its protest and invoke the automatic stay because 10 U.S.C. § 2305(b)(5)(B)(vii) holds open the debriefing, requiring that “[t]he debriefing shall include . . . an opportunity for a disappointed offeror to submit, within two business days after receiving a post-award debriefing, additional questions related to the debriefing.” Surprisingly, the COFC granted the stay even though NIKA had not taken advantage of the opportunity to submit follow-up questions. The COFC’s decision was then appealed to the Federal Circuit, which decided to exercise its discretionary review of the COFC’s decision under the court’s “capable of repetition, yet evading review” doctrine, even though the issue was moot by that point because NIKA’s bid protest and the stay at issue had both concluded by the time of appellate review.
10 U.S.C. § 2305(b)(5)(C) and 31 U.S.C. § 3553(d)(4)(B) create an extended deadline for the CICA stay when additional questions are submitted; however, they do not address the situation wherein no questions are asked. NIKA argued that this extension applied regardless of whether additional questions were asked. Thus, the Court’s analysis considered whether the 2-day window afforded by the DoD post-award enhanced debriefing rights and the 5-day window for the CICA automatic stay run concurrently or consecutively in such cases. In its analysis, the Court looked to both statutes, focusing on the enhanced post-award debriefing rights section of the former which provides that “[t]he agency shall not consider the debriefing to be concluded until the agency delivers its written responses.” The Court held that Congress’s express extension for cases wherein the protester asks additional questions implies that no such extension exists when the protestor does not elect to ask questions.
The lesson learned is that if disappointed offerors wish to avail themselves of additional time to consider and file a protest while still obtaining the benefit of the automatic CICA stay, they must ask additional questions within two (2) business days of a debriefing.
Vandeventer Black’s Government Contracts attorneys can answer your questions about protest timeliness or other government contracting issues.
 In another recent article, we discussed protest timeliness in procurements where the FAR does not mandate debriefings be conducted if requested.