Under 4 CFR § 21.2, disappointed offerors protesting the award of a contract must file their protest within “10 days after the basis of the protest is known or should have been known.” Notwithstanding the seemingly clear language, this is the subject of regular dispute, particularly with respect to procurements that require a debrief or explanatory letter to the party not receiving award. Additionally, there are important timeliness considerations relating to an automatic stay of performance that are beyond the scope of this article.
4 CFR § 21.2(a)(2) expressly provides an exception to the 10-day deadline for protests challenging a procurement conducted on competitive proposals where a debriefing is required when requested. In such cases, the protest must be filed within 10 days of the debriefing date the agency offers. However, not all solicitations require a debriefing; for example, procurements of Federal Supply Schedules made under FAR Part 8, Simplified Acquisition Procedures under FAR Part 13, Commercial Items under FAR Part 12, and some procurements under FAR Part 16. Rather than a formal debriefing, those procurements generally require only a “brief explanation” letter addressing the basis for awards based on factors other than price alone. Such a letter does not automatically create a new protest filing timeline, like a required debriefing.
It is important to note that information conveyed by the agency in a notice to an unsuccessful offeror may, of itself, trigger the 10-day protest deadline, even if the offeror requests further information. For this reason, agencies often challenge the timeliness of protests where a debriefing was not required. The foundational question in resolving such challenges is when the basis of protest was known or should have been known by the protester, including whether that was prior to or upon receipt of the agency’s brief explanation letter.
For example, in Castro & Company LLC, B-412398, January 29, 2016, 2016 CPD ¶ 52, the Government Accountability Office (“GAO”) found a federal supply schedule protest timely, despite being filed thirty-three days after the award without a formal debrief. The agency challenged the timeliness of the protest, arguing that the lack of a debrief requirement created a 10-day post-award filing deadline. However, the protest was filed within 10-days of the agency’s brief explanation letter, which detailed the proposal’s weaknesses. The GAO found for the protester, explaining that the “basic timeliness rule is that a protest challenging a contract award . . . must be filed not later than 10 days after the basis of protest is known,” stating that the factual basis of the protest is “the substance of the evaluation and the source selection rationale” which the protestor did not know before receiving the brief explanation letter.
The GAO made a similar finding in Matter of Ampcus, Inc., B-415780, March 16, 2018, 2018 CPD ¶ 113, noting:
On November 20, Ampcus requested a brief explanation for award, which was provided on December 1. The brief explanation letter identified Ampcus’ and CTEC’s ratings, and described the strengths and weakness associated with Ampcus’ quotation. On December 11, Ampcus protested. While we recognize that the debriefing exception does not apply to procurements conducted under FAR subpart 8.4, in this instance, the protest was timely filed within 10 days of receipt of the letter that provided the factual basis for the protest.
The Court of Federal Claims (“COFC”) has held similarly. For example, in Favor TechConsulting, LLC v. United States, 129 Fed. Cl. 208, 215 (2016), the COFC explained that “a potential bid protester cannot be expected to file a bid protest before they know when an award is made and the grounds upon which a protest may be based.”
Federal procurement protests operate on tight deadlines, so prompt evaluation of protest timelines is critical, and the assistance of counsel is often beneficial. Vandeventer Black’s attorneys are experienced in all phases of the federal procurement process, from proposals to post-award disputes.