If you are excluded from the competitive range in a procurement, you have a right to request a debriefing (within 3 days) to learn why. 41 U.S.C. § 3705(a). But the scope of that pre-award debriefing is more limited than a post-award debriefing. Pre-award debriefings cover the agency’s evaluation of “significant elements” of the excluded contractor’s offer, the rationale for the exclusion, and “reasonable responses to relevant questions” posed by the excluded offeror. 41 U.S.C. § 3705(d). But they expressly cannot cover the total number or identities of offerors, or the “content, ranking, or evaluation” of the other offerors’ proposals. 41 U.S.C. § 3705(e). That information is available only in post-award debriefings. 41 U.S.C. § 3704(c). This difference in scope may create the temptation to delay a pre-award debriefing until after award in the hope that you will gain more information. But giving in to that temptation may preclude a protest at GAO.
Duty to pursue protest grounds
GAO’s bid protest regulations generally require that protests be filed within 10 days “after the basis of protest is known or should have been known (whichever is earlier) . . . .” 4 C.F.R. § 21.2(a)(2) (emphasis added). The “should have been known” aspect of that requirement means that protesters have an affirmative obligation to diligently pursue information about their potential grounds of protest. Taking a more passive approach is inconsistent with that obligation and could mean that any subsequent protest is untimely, even if the information was not previously known.
For example, GAO has previously held that a protest filed four months after an award decision based on information from a FOIA request was untimely because the protester did not request a debriefing, which would have revealed much of the information ultimately obtained from the FOIA request. See Automated Med. Products Corp., B-275835, Feb. 3, 1997, 97-1 CPD ¶ 52.
GAO has also held that deliberately delaying a pre-award debriefing until after award is inconsistent with the obligation to diligently pursue potential protest grounds. In United Int’l Investigative Services, Inc., B-286327, Oct. 25, 2000, 2000 CPD ¶ 173, the protester timely requested a debriefing after learning it was excluded from the competitive range, but it expressly requested that “this debriefing be delayed until after award” pursuant to FAR 15.505. That FAR provision allows pre-award debriefings to be delayed, but notes that such a delay “could affect the timeliness of any protest filed subsequent to the debriefing.” FAR 15.505(a)(2). The agency complied with the request and provided a written debriefing after award. But when the protester subsequently filed its protest challenging the evaluation of its proposal, the agency moved to dismiss it as untimely. GAO agreed and dismissed the protest because the protest grounds were based on information that could have been obtained earlier, had the pre-award debriefing not been delayed.
The same result can occur even if the agency offers the delay (as opposed to the offeror affirmatively requesting the delay). In Loc Performance, Inc., B-417431, Apr. 22, 2019 [PDF], the protester requested an immediate debriefing after learning it was excluded from the competitive range. In response, the agency explained the different scopes of pre-award and post-award debriefings and asked the protester to pick one or the other. The protester chose the post-award debriefing and timely protested after that debriefing. The agency argued that the protest was untimely and GAO agreed, citing its prior ruling in United Int’l. GAO also rejected the protester’s argument that the agency engaged in gamesmanship. The protester asserted that it understood the agency’s choice of a pre-award or post-award debriefing as a suggestion to select a post-award, rather than pre-award, debriefing. GAO disagreed and found there was nothing misleading in the agency’s explanation.
GAO’s debriefing deadline exception
The protesters in both United Int’l and Loc Performance appear to have (mistakenly) relied on the debriefing exception to GAO’s 10-day “known or should have known” protest filing deadline. When a procurement is based on competitive proposals “under which a debriefing is requested and, when requested, is required,” the filing deadline extends to 10 days after the debriefing is held. 4 C.F.R. § 21.2(a)(2) (emphasis added). Because the regulation refers to debriefings generally (without distinguishing between pre-award and post-award), one might assume that the extended deadline relates to either or both types of debriefings.
The key, though, is whether the debriefing is required when requested. Pre-award debriefings are required when timely requested and they render the post-award debriefing optional unless the Government refuses the pre-award debriefing. 41 U.S.C. § 3705(c). But the Government can only refuse a pre-award debriefing if it determines that conducting a debriefing at that time (i.e., pre-award) “is not in the best interests of the Federal Government.” 41 U.S.C. § 3705(b). If the Government does not make that determination, then the pre-award debriefing is required and the post-award debriefing is optional. As a result, the debriefing exception to GAO’s 10-day filing deadline does not apply when an offeror requests or consents to a delay of its pre-award debriefing because the post-award debriefing is not required, even if requested.