February 8, 2021 - Protests & Litigation

Stays of Performance During a GAO Bid Protest: Federal Circuit Says That Five Days After the Debriefing Date Means Five Days After the Debriefing Date

Protests and LitigationThe Court of Appeals for the Federal Circuit has issued a precedential decision in NIKA Technologies, Inc. v. United States, reversing a decision by the Court of Federal Claims on the timelines for securing a stay of contract performance in post-award protests to the Government Accountability Office (GAO).

Last year, we briefly discussed an unusual decision by the Court of Federal Claims.  By statute, an agency generally is required to stay contract performance if it receives a post-award bid protest from the Government Accountability Office (GAO) within five calendar days after the agency gives the protester a required debriefing.  Under the Department of Defense’s (DOD) statutory enhanced debriefing process, an agency must provide a debriefed offeror two business days in which to submit written questions on the debriefing.  If the offeror submits timely written questions within two days after a required debriefing, the offeror’s filing deadline for securing the stay of performance becomes five calendar days after the agency provides the offeror written responses to its timely questions.

The Court of Federal Claims Decision

On March 4, 2020, the protester received a required debriefing in a procurement subject to the DOD enhanced debriefing rules and was given the standard two business days in which to submit questions – i.e., any questions would be due by March 6, 2020.  The protester did not submit any post-debriefing questions.  On March 10, 2020, it filed a protest with the GAO – that was four days after its deadline to submit questions, and six days after the date on which it received its debriefing.  Although the GAO had jurisdiction over the protest because it clearly met the ten-day deadline for jurisdictional purposes, the agency declined to implement the statutory stay of performance of the awarded contracts, arguing that the protester missed the separate five-day deadline for triggering the performance stay.

Because the GAO does not get involved in disputes over stays, the protester filed suit at the Court of Federal Claims to enforce the stay, while continuing to litigate the merits of the protest before the GAO.  According to the protester, its five-day clock did not begin to run until March 6, 2020 – the deadline for submitting the questions it did not submit.  The Court of Federal Claims surprisingly agreed with the protester.  The court reasoned that the two-day period in which to ask questions essentially extends the debriefing period by two days, regardless of whether the offeror ultimately submits any questions.  Therefore, according to the court, the debriefing “date” for purposes of starting the five-day clock was the March 6 deadline to submit questions, not the March 4 date on which the debriefing itself was given.  Because the protester filed its GAO protest within five days of March 6, it was entitled to the stay of performance.

The Government appealed the decision to the Court of Appeals for the Federal Circuit.

The Federal Circuit Appeal

By the time the case came before the Federal Circuit, the protester had lost its GAO protest – meaning it would not be entitled to a stay regardless of how the court resolved the timing question.  As a result, the protester itself declined even to participate in the appeal.  The court took the appeal under a narrow exception to the ordinary rule that courts will not adjudicate moot controversies.  Because this issue was “capable of repetition but evading review,” the court found it had jurisdiction over the appeal.

The Federal Circuit looked to the plain language of the underlying enhanced debriefing statute and found that it contemplated that the debriefing date was the date on which the debriefing actually was provided:

The plain meaning of [31 U.S.C.] § 3553(d)(4)(A)(ii) is that the clock starts on the day that the bidder receives debriefing.  The statute refers to “the debriefing date,” using the singular form of the noun.  § 3553(d)(4)(A)(ii) (emphasis added).  If Congress thought otherwise, it could have said “the end of the debriefing period,” but instead it said “the debriefing date.”  This indicates that the proper interpretation is that the timer starts on the day that a bidder receives its debriefing, not two days afterward.  It would be at odds with the plain meaning to interpret the statute to define “the debriefing date” as a day on which no actual debriefing occurred.

Rejecting the lower court’s holding that the two-day period in which to ask (or not ask) questions was an automatic part of the debriefing, the Federal Circuit focused on the word “after” in the statute:

While the statute mandates a two-day opportunity to ask questions, it mandates it “after… debriefing,” which means that the two-day period for questions occurs within the five-day window for filing a protest.  10 U.S.C. § 2305(b)(5)(B)(vii) (emphasis added).

As a result, the court held that a protester’s five-day clock for filing a protest begins to tick on the day of the debriefing itself, even in a DOD extended debriefing, and stops only if the protester submits timely written questions to the agency within two business days.  In that case, the protester’s five-day clock resets itself and begins to tick again once the agency provides the written responses to the protester’s timely questions.

Takeaways:  It was helpful for the Government to take this appeal and for the court to issue a decision on this question.  But the answer does not come as a surprise and reflects the standard advice protest lawyers have given their clients even after the Court of Federal Claims’ decision last year.

It is worth observing that the court’s holding in NIKA applies only to DOD procurements covered by the enhanced debriefing statute.  There is no automatic right to reset protest clocks by asking questions under other procurements.

That said, even in non-DOD procurements, agencies certainly may voluntarily extend a debriefing beyond a single day, and may grant specific requests to keep a debriefing “open” until an offeror has had a chance to receive answers to its relevant questions.  Such voluntary extensions benefit offerors by providing time to reflect and seek more information, and often spare agencies unnecessary protests by offerors who otherwise would be frustrated by less than fulsome initial debriefing information and find themselves rushed to protest by a ticking clock.  As long as the agency clearly communicates that a debriefing remains open, the five-day clock will not begin to run until it is closed.  In procurements not covered by the DOD enhanced debriefing rules (which are automatic), the best practice is for an offeror to get written confirmation from the agency that a debriefing remains open for a question period, and for the agency to provide written notice when a debriefing closes.  Absent such confirmation in a non-DOD procurement, an offeror generally should assume the five-day clock begins to run on debriefing day and will not be extended or reset.