The New Bid Protest and Debriefing Procedures

The General Accounting Office (GAO) has revised its bid protest regulations pursuant to the National Defense Authorization Act for Fiscal Year 1996. The new protest regulations are designed to speed the protest process in order to meet the new 100-day deadline for issuing bid protest decisions. Most of the changes are of a procedural nature.

First, the GAO has changed its denomination of “day” from “working” day to “calendar” day. Under the previous rules that used “working” days, protesters anxiously referenced their calendars to cull weekends and holidays from their deadlines. Now, the uniform use of “calendar” days will permit an easier calculation of due dates.

The major change to the GAO bid protest rules was to shorten the timeframe for filing a timely protest. Under the new rules, a vendor protesting an impropriety in a solicitation, such as a restrictive specification, must still file its protest before the due date for receipt of bids or proposals. However, a vendor protesting its rejection from the competitive range or the award of a contract to another vendor, however, must now file its protest within 10 calendar days after the grounds for protest are known, rather than the old 14 calendar days.

In addition, there are new debriefing regulations. For competitive procurements — basically RFPs — a protester may in writing request a debriefing within three calendar days after notice of award to another vendor, or after rejection from the competitive range. If the agency receives a written request for a debriefing within that three calendar day window, then the agency must give the contractor a telephonic or in-person debriefing. The debriefing must be held within five calendar days if practicable, but can be later.

The importance of the debriefing date offered by the agency is that it governs the timeliness of the protest. A vendor that asked for a debriefing may not file a protest before the offered debriefing date. Only after the requested debriefing is held can the vendor file a protest with the GAO.

As a point of law, it is the date the agency offers for the debriefing that controls the timeliness, not the date the debriefing is actually held. If an agency responds to a request for a debriefing by offering a particular date and the vendor can’t attend on that date, the offered date still tolls the protester’s 10-day protest timeframe. Given the fact that a vendor may file a protest within 10 calendar days after the debriefing and considering that a protester has three calendar days to ask for a debriefing, and the agency has five or more days after that in which to offer the debriefing, the protest timeframe can now expand for almost one month after award.

The regulations governing the suspension of protested contracts has also changed. While a contractor can still obtain the suspension of contract performance by filing a protest within 10 calendar days after contract award, a vendor can also get a stay of contract by filing a protest within five calendar days after the offered date for a required debriefing. Note that the suspension timeline is independent from the general filing deadlines, so don’t confuse the two.

Once a protest is filed, the agency must now submit its administrative report within 30 days after the protest filing date. This is shortened from 35 days under prior law. Also, as mentioned above, the GAO must decide the protest within 100 calendar days, shortened from 125 days previously.

With the demise of the General Services Board of Contract Appeals, and considering the movement in the Congress to limit judicial review of procurements, the GAO will play a stronger, more important role as the primary, pre-eminent bid protest forum. While the role of bid protests is receding as federal procurement becomes more corporate, both contractors and agencies should nonetheless learn the bid new protest rules and how they work.