The Government Accountability Office (GAO) has strict timeliness rules for submission of bid protests. Under these timeliness rules, post-award protests must typically be filed no later than 10 days after the basis of the protest is known or should have been known, except when the debriefing exception applies. The debriefing exception, which does not apply to federal supply schedule (FSS) procurements, requires unsuccessful offerors to file their protests within 10 days of a required and requested debriefing. In General Services Administration (GSA) FSS procurements conducted under Federal Acquisition Regulation (FAR) subpart 8.4, unsuccessful offerors are only entitled to a “brief explanation.” Due to the terms being somewhat similar, contractors may confuse the “brief explanation” contemplated under FAR subpart 8.4 with the required and requested “debriefing” of competitive proposals. Such confusion may prove problematic as it can cause an unsuccessful offeror to miss the 10-day deadline to file their post-award protest at the GAO.
In B-422881, a decision issued on September 12, 2024, the GAO dismissed such a protest as untimely, reminding the protestor of the distinction between a required and requested “debrief” and a “brief explanation” under FAR subpart 8.4. The Navy’s Military Sealift Command issued the relevant FSS Request for Quotation (RFQ) for lodging negotiation and management services, requiring vendors to provide multiple extended-stay studio rooms in Mobile, Alabama. The RFQ contemplated a lowest-priced technically acceptable (LPTA) award and required offerors to submit their quotations on or before August 8, 2024. The protestor was notified that its quotation was unsuccessful on August 13 via the GSA eBuy system. On August 16, the government provided the protestor with a “brief explanation,” as required under FAR subpart 8.4. In the brief explanation, the Navy advised the protestor that its quotation was evaluated as technically unacceptable and was therefore ineligible for award. The brief explanation also specifically noted that it was not a debrief.
On August 19, the protestor emailed the Navy and requested additional information as to why its quotation was deemed technically unacceptable. The protestor also requested a formal debrief. Upon receiving no acceptable response from the Navy beyond an initial acknowledgment of receipt, the protestor again contacted the Navy on August 22 and August 26 and demanded an explanation for the Navy's award to a higher-priced quotation. However, the Navy did not respond to these communications. Eventually, the unsuccessful offeror filed a bid protest with the GAO on August 29, alleging that the government unreasonably evaluated its quotation as technically unacceptable, causing an improper award to a higher-priced quotation. In response, the Navy filed a request to dismiss the protest as untimely. The Navy argued that the protest was untimely because the protestor was aware, as of August 16, 2024, that it was not selected for award when the Navy provided the protestor a brief explanation. Therefore, a GAO protest challenging the award should have been filed by the protestor no later than August 26, 2024.
In agreeing with the Navy, the GAO dismissed the protest as untimely. The GAO explained that the protestor had missed its August 26 deadline by filing the protest on August 29, 2024. The GAO disagreed with the protestor’s contentions that it should be exempted from the timeliness requirements in this instance because it had missed the deadline due to the Navy’s failure to respond to its requests for a debrief. The GAO reminded the protestor that its use of the “good cause exception” to its timeliness rules was reserved for situations involving unexpected and unanticipated issues that prevent the protestor from adhering to the strict timeliness requirements. Here, it was clear from the record that the procurement was conducted under FAR subpart 8.4. Since debriefings are not available in such procurements, the debriefing exception is also inapplicable. Thus, the Navy was only obligated to provide a brief explanation to the protestor, which it provided on August 16, putting the protestor on notice that its quotation had been unsuccessful. The protestor then had ten days to file its protest at the GAO, which it failed to do. Therefore, the protest was dismissed for failing to meet GAO’s timeliness requirements.
Contractors participating in GSA FSS procurements conducted under FAR subpart 8.4 should be mindful that they are entitled to a “brief explanation,” not a “debrief” following the award decision. The government may provide such a brief explanation with the initial notice of an unsuccessful offer, thereby starting the 10-day clock for filing a GAO protest. Furthermore, the government is typically under no obligation to respond to or even acknowledge requests for debriefs in procurements where a debrief is not required. Therefore, to safely adhere to GAO’s timeliness requirements, whenever possible, offerors should file protests challenging FAR subpart 8.4 awards within 10 days of receiving the initial notice of an unsuccessful offer. By doing so, unsuccessful offerors can preserve their option of filing a GAO protest, which is typically the preferred forum for filing GSA FSS protests due to the inapplicability of the Federal Acquisition Streamlining Act (FASA) task order bar.
This Bid Protests Insight provides a general summary of the applicable law in the practice area and does not constitute legal advice. Contractors wishing to learn more are encouraged to consult the TILLIT LAW PLLC Client Portal or Contact Us to determine how the law would apply in a specific situation.
