Recent GAO Decision Clarifies That US DoD Enhanced Debriefing Procedures Do Not Apply to Pre-Award Debriefings

On November 29, 2022, the US Government Accountability Office (“GAO”) released a decision, MP Solutions, LLC,¹ in which it denied a bid protest of a $455 million award by the Missile Defense Agency (“MDA” or “Agency”). Addressing an issue of first impression, GAO found that the rules on enhanced debriefing rights for unsuccessful bidders do not apply when the debriefing is held pre-award.

Background – Debriefings

By way of background, the Federal Acquisition Regulation (“FAR”) establishes processes for debriefing offerors, both before and after award. Before award, under FAR section 15.505, offerors excluded from the competitive range or otherwise excluded from the competition may request a debriefing. A pre-award debriefing must include the agency’s evaluation of significant elements of its proposal, a summary of the rationale for eliminating the offeror from the competition, and reasonable responses to relevant questions.² Upon a timely request after award, under FAR section 15.506, an offeror is entitled to a debriefing containing similar information as to the agency’s basis for its selection decision and contract award.

Relevant hee, on March 18, 2022, the US Department of Defense (“DoD”) published a final rule³ requiring enhanced 5 debriefing rights for unsuccessful offerors with regard to competitive negotiated contracts in excess of $10 million and task orders and delivery orders in excess of $10 million.⁴ In addition to the traditional (oral or written) debriefing process, an enhanced debriefing allows the offeror to submit additional written questions related to the debriefing. And importantly for protest timeliness, the debriefing is considered to remain open until the agency answers the questions.⁵

As discussed below, in deciding a request for dismissal, GAO found that DoD’s enhanced debriefing procedures apply only to post-award debriefings.

The Protest

Here, the protest involved the MDA’s exclusion of the protester from the competitive range under a request for proposals for specialized engineering analysis services. The solicitation was issued as a total small business set-aside using the procedures of FAR part 15, Contracting by Negotiation. Upon notification of its exclusion from the competitive range and receipt of a pre-award debriefing, MP Solutions filed a protest with GAO. The protest challenged various aspects of the Agency’s evaluation and alleged a Procurement Integrity Act violation by MDA personnel. While the decision addresses these substantive challenges, this Legal Update concentrates on GAO’s resolution of the timeliness issue.

Prior to submission of the agency report responding to the substance of the protest, MDA requested GAO summarily dismiss the protest as premature because it was filed prior to the conclusion of a required debriefing. As support, the Agency cited GAO’s Celeris decision, in which GAO found a protest premature when it was filed during an enhanced debriefing but before such debriefing was concluded.⁶

GAO began its analysis with a recitation of the facts relevant to the issue of timeliness, as reflected in the following timeline:

• July 11 – Agency notifies protester of its exclusion from the competitive range.
• July 12 – Protester requests a pre-award debriefing.
• August 1 – Pre-award debriefing occurs; Agency invites relevant questions.
• August 3 – Protester submits debriefing questions.
• August 11 – Protester receives no response; files protest.
• September 1 – Agency responds to debriefing questions.

Then, citing its Bid Protest Regulations, GAO set forth the applicable timeliness rule—namely, that protests based on something other than improprieties in a solicitation “shall be filed not later than 10 days after the basis of protest is known or should have been known” except for “protests challenging a procurement conducted on the basis of competitive proposals under which a debriefing is requested and, when requested, is required.”⁷ GAO further pointed out that in those circumstances, its regulations establish that “any protest basis which is known or should have been known either before or as a result of the debriefing . . . shall not be filed before the debriefing date offered to the protester” and instead “shall be filed not later than 10 days after the date on which the debriefing is held.”⁸

Next, GAO addressed the Agency’s contention that the debriefing here could not be considered closed until the Agency delivered its written responses to the debriefing questions submitted. First, GAO found the Agency’s reference to a case involving DoD’s enhanced debriefing rules misplaced. Examining the language of Section 818 of the National Defense Authorization Act for Fiscal Year 2018—i.e., the statutory basis for DoD’s enhanced debriefing process—GAO found the procedures wholly inapplicable to pre-award debriefings:

Thus, by its plain language, the statute establishing the DOD’s enhanced debriefing procedures applies only to post-award debriefings, not to pre-award debriefings, as the one at issue here. Accordingly, the agency’s reliance on our Celeris decision--which discusses the interaction between our timeliness rules and the DOD’s enhanced requirements for post-award debriefings--is misplaced and provides no support for MDA’s timeliness argument.⁹

GAO then explained that “[i]n a non-enhanced debriefing environment, the fact that MP Solutions took advantage of the opportunity to submit questions does not extend the debriefing, as our Office has found that only an agency’s action can extend a debriefing.”¹⁰ Turning to the Agency’s actions here, GAO found that the lack of indication as to whether the debriefing would remain open during the opportunity to ask questions, combined with the Agency’s silence in response to the questions during the 10-day window to file a protest, created an ambiguity that led the protester to reasonably believe that its debriefing was closed. Noting that it resolves doubts regarding timeliness in favor of protesters, GAO concluded that the protest was timely filed and was not premature.¹¹

Takeaways

To be sure, offerors on federal opportunities appreciate the valuable information that, in theory, should be shared during DoD’s enhanced debriefing process. And as offerors continue to become familiar with the peculiarities of this procedure, they must be aware of potential pitfalls with respect to their ability to file a subsequent protest. As a result, contractors should take note of the MP Solutions decision for several reasons.

Enhanced Debriefing Procedures Only Apply Post-Award

First, examining a novel legal issue, GAO found that the enhanced debriefing procedures do not apply to pre-award debriefings. This is not to say that procuring agencies cannot voluntarily establish (in a solicitation or otherwise) a pre-award debriefing process that allows the debriefing to stay open until the agency responds in writing to those questions. Indeed, we have recently experienced situations in which the agency has informed offerors—either in the solicitation, the notice of unsuccessful offeror, or the debriefing letter—that additional follow-up questions to the debriefing can be submitted within a prescribed deadline and that the debriefing will be held open until the agency responds.¹² Rather, the importance of the MP Solutions decision is that because the enhanced debriefing rules do not apply, a pre-award debriefing will not automatically be held open while the agency considers the offeror’s questions. Consequently, in a pre-award debriefing context, a contractor must be attentive to specific procedures that the agency has established for the particular procurement.

Only Agency Action Can Extend a Debriefing

Second, MP Solutions reminds offerors that when determining whether a debriefing is open or closed, only an agency’s actions can extend a debriefing. That is, the mere fact that an offeror takes advantage of an opportunity to submit questions does not prevent a debriefing from closing. For example, where there is no affirmative indication from the agency that the debriefing will remain open after a scheduled session, the debriefing will be considered to have concluded at the end of the session despite an offeror’s continued pursuit of questions with the agency.¹³ Of note, however, it is possible that an agency’s actions may be found, in some circumstances, to extend the time to file a protest by creating ambiguity as to whether a debriefing has concluded. For instance, an agency’s additional responses to protester’s questions following a written debriefing and silence as to the status of the debriefing could create such an ambiguity.¹⁴ And because GAO resolves doubts regarding timeliness in favor of protesters, a disappointed offeror may avail itself of this lifeline if faced with an evasive agency. The preferred course of action, of course, is to mitigate risk by seeking clarification from the agency early and often in the process.

Burden Is on Offeror to Keep Track of the 10-Day Protest Window

Finally, this decision is important because it reinforces a developing approach that GAO has taken with respect to its post-debriefing timeliness rules. This emerging principle is that unless the agency’s actions have at least created an ambiguity as to whether the debriefing is open, a disappointed offeror must file a protest on the 10th day after a debriefing or risk dismissal.¹⁵ In this regard, GAO makes several references to the “10-day window” while analyzing the facts in MP Solutions. Also, in its decision, GAO cites to K&K Industries, which dismissed a protest as untimely where the agency stated “[t]his concludes your written debriefing” and the protest was not filed within 10 days of receipt of that statement. GAO reached this conclusion in K&K Industries despite the parties continued communication after the 10-day protest window closed, which included another round of questions and answers. On this latter point, GAO reasoned that the agency’s voluntary responses to additional questions, sent to the protester after the time to protest had expired, did not revive an untimely protest. Thus, it appears that GAO is increasingly placing the burden on the potential protester to either file a protest or confirm (in writing) that the debriefing is still open within 10 days after the initial debriefing.

In sum, the overarching takeaway is that disappointed offerors should become familiar with the MP Solutions decision and exercise caution when determining whether a pre-award debriefing is closed for purposes of filing a protest.

¹ MP Solutions, LLC., B-420953, B-420953.2, Nov. 21, 2022, 2022 CPD ¶ 289.

² FAR 15.505(e).

³ Before issuance of the final rule, DoD had been conducting enhanced debriefings since 2018 pursuant to DoD Class Deviation 2018-O0011.

⁴ In a prior Legal Update, we discussed the DoD enhanced debriefings rules in more detail.

⁵ GAO’s Bid Protest Regulations provide that protests based on something other than improprieties in a solicitation “shall be filed not later than 10 days after the basis of protest is known or should have been known” except for “protests challenging a procurement conducted on the basis of competitive proposals under which a debriefing is requested and, when requested, is required.” 4 C.F.R. 21.2(a)(2). In the context of required debriefings conducted over multiple days, GAO considers the 10‑day period to file a protest to begin when a required debriefing is “concluded.” See State Women Corp., B‑416510, July 12, 2018, 2018 CPD ¶ 240 at 4‑5 (dismissing the protest as untimely because it was filed more than 10 days after the DoD enhanced debriefing concluded). 

⁶ MP Solutions, LLC., supra at 5 (citing Celeris Systems, Inc., B-416890, Oct. 11, 2018, 2018 CPD ¶ 354 at 2).

⁷ MP Solutions, LLC., supra at 4 (citing 4 C.F.R. 21.2(a)(2)).

⁸ MP Solutions, LLC., supra at 4-5.

⁹ GAO also pointed out that the Defense Federal Acquisition Regulation Supplement (“DFARS”) provisions implementing Section 818’s enhanced debriefing requirements mirror the statutory language with respect to the specific application to post-award debriefings:

When providing a required postaward debriefing to successful and unsuccessful offerors, contracting officers shall -- (a) Provide an opportunity to submit additional written questions related to the required debriefing not later than 2 business days after receiving the postaward debriefing; (b) Respond in writing to timely submitted additional questions within 5 business days after receipt of the questions; and (c) Not consider the postaward debriefing to be concluded until the later of -- (1) The date that the postaward debriefing is delivered, orally or in writing; or (2) If additional written questions related to the debriefing are timely received, the date the agency delivers its written response.

MP Solutions, LLC., supra at 6 n.2 (citing DFARS 215.506-70).

¹⁰ MP Solutions, LLC., supra at 7 (citing K&K Indus., Inc., B-420422, B-420422.2, Mar. 7, 2022, 2022 CPD ¶ 62 at 5; New SI, LLC, B-295209 et al., Nov. 22, 2004, 2005 CPD ¶ 71 at 3).

¹¹ MP Solutions, LLC., supra at 8.

¹² These procedures often expressly state that the government’s response to the questions will conclude the debrief and that, conversely, if follow-up questions are not asked, the debriefing will be considered closed as of the offeror’s receipt of the written debrief letter. Vigilant offerors should look for such express language or seek clarification from the agency on exactly when the debriefing is to close, lest they risk falling into a protest timeliness trap.

¹³ See e.g., New SI, LLC, B-295209 et al., Nov. 22, 2004, 2005 CPD ¶ 71 at 3.

¹⁴ See e.g., Handheld Sys., Inc., B-288036, Aug. 10, 2001, 2001 CPD ¶ 142 at 2.

¹⁵ MP Solutions, LLC., supra at 7 (citing K&K Indus., Inc., B-420422, B-420422.2, Mar. 7, 2022, 2022 CPD ¶ 62 at 5).