GAO Signals More Demanding Approach to Corrective Action Dismissals

Luke W. Meier

About a third of U.S. Government Accountability Office (“GAO”) protests end because an agency decides to take voluntary corrective action. (This is evidenced by the ~30 percent difference between GAO’s “Sustain” rate and “Effectiveness” rate.) While it is considered a “win,” voluntary corrective action can be frustrating for protesters who may have no assurance their concerns will truly be addressed. Agencies often say little about what the corrective action will entail. When they do discuss specific steps to be taken, agencies often list various actions they may or may not take, depending on further assessment as the corrective action unfolds. Historically, GAO has largely brushed aside complaints about these uncertainties. When an agency announces its intent to take corrective action, the perfunctory next step has been a quick dismissal of the protest.

In a recent decision, however, GAO signaled a willingness to demand more from agencies seeking a dismissal based on corrective action. Continue reading “GAO Signals More Demanding Approach to Corrective Action Dismissals”

Despite Court’s Ruling, Questions Remain Regarding the Automatic Stay Deadline for Bid Protests Following Enhanced Debriefings

Luke W. Meier and Robyn N. Burrows

Enhanced Department of Defense (“DoD”) debriefings have been heavily utilized in recent years, but there remains uncertainty, and differing interpretations, regarding the point at which an offeror receiving an enhanced debriefing is “on the clock” for purposes of obtaining an automatic stay of performance. In NIKA Techs., Inc. v. United States, No. 20-299C (Fed. Cl. Apr. 16, 2020), the Court of Federal Claims (“COFC”) recently held that, on its facts, the filing period for obtaining an automatic stay did not begin to run until after the two-day window for submitting supplemental questions has passed—even though the offeror submitted no supplemental questions. Potential protesters must understand, however, that NIKA does not provide the safe harbor that some have read in its holding, and it remains essential to understand the agency’s position regarding debriefing closure before planning to protest more than five days after the initial debriefing event.

Timelines Rules for Debriefings

To be timely, protests at the Government Accountability Office (“GAO”) must be filed no later than 10 days after the basis for the protest was known or should have been known—unless the protester requests a required debriefing, in which case the protest must be filed within 10 days after the debriefing date. To obtain an automatic stay of performance under the Competition in Contracting Act (“CICA”), however, a protester cannot wait the full 10 days. The protest must be filed within five days after the “debriefing date.”

The debriefing process is slightly more complex for DoD procurements. Section 818 of the National Defense Authorization Act for FY 2018 established enhanced post-award debriefing rights for protesters, requiring that agencies provide disappointed bidders an opportunity to submit additional questions within two business days after receiving the post-award debriefing.  The agency has five days to respond, and the debriefing period is not considered closed until the agency “delivers to a disappointed offeror the written responses” to any supplemental questions.  31 U.S.C. § 3553(d)(4)(B). Thus, to obtain an automatic stay of performance, the protest must be filed within five days after receiving the agency’s response to the supplemental questions.

Calculating Debriefing Date for Enhanced Debriefings

But what happens if an offeror submits no follow-up questions after the initial debriefing? To date, most agencies have taken the position that the debriefing is closed unless the offeror avails itself of the opportunity to submit follow-up questions, triggering the extra time for one more agency response. Thus, contracting officers often advise offerors, as in NIKA, that the agency “will consider the debriefing closed if additional questions are not received within (2) business days.” NIKA, No. 20-299C, at *1. Until recently, protesters have lacked guidance on how to properly interpret the applicable debriefing date when no additional questions are submitted, and in some cases have had to come up with supplemental questions if only for the sake of ensuring the ability to have additional time to prepare their protest and still obtain an automatic stay.

COFC Addresses Timeliness Rules for Enhanced Debriefings

In NIKA, the Army Corps of Engineers (“Corps”) had provided the offeror a written debriefing on March 4, 2020, and included an option for submitting additional questions within two business days. On March 7, 2020, NIKA informed the Corps that it had no further debriefing questions. NIKA then filed a post-award protest with the GAO on March 10, 2020, seeking an automatic stay of performance. The Corps denied the protester’s request for a stay, claiming the date for a timely filing would have been March 9, 2020 (i.e., five days after the March 4 debriefing date). The protester argued that the “debriefing date” included the two-day window following receipt of the March 4 debriefing letter in which the protester had an opportunity to submit questions, meaning the clock for a CICA stay did not start until March 6.

The court found in favor of the protester’s argument, holding that the debriefing process included the two-day period to submit additional questions. The court explained that, although the language in 31 U.S.C. § 3553 did not expressly define debriefing as including these two extra days, it clearly included the possibility of a debriefing process lasting more than one day. The court further interpreted the agency’s statement that it would “consider the debriefing closed if additional questions are not received within (2) business days” as a commitment to keep the debriefing open through that two-day period—regardless of whether any questions were asked.  That may have been the opposite of what the agency actually intended to communicate. In the court’s view, however, the agency’s communications meant that the debriefing closed at the end of a potentially multi-day debriefing process rather than a singular date. Here, the process ended when the protester chose not to submit further questions at the end of the two-day period.

The holding in NIKA should not be viewed as a guarantee that potential protesters will always get the extra two days even if they submit no questions, however. Though the court interpreted the underlying statutes and regulations as providing the additional two-day window, it also implicitly limited its holding by pointing to the language of the agency’s letter, which suggested an open debriefing through the two-day period for questions. NIKA left open the possibility that the two-day extension might not apply if the agency’s communications stated more clearly that the debriefing was considered closed, as of that time, unless further questions were submitted. It also left unanswered whether the court’s holding would apply to an offeror that immediately notifies the agency that it will not submit additional questions, rather than waiting the full two-day period before providing such notification (as NIKA did).

Conclusion

While NIKA provides some insight, it is still important that potential protesters proceed with caution. In any case where an offeror plans to protest and believes the CICA clock is running from a date later than the debriefing itself, the offeror should confirm that understanding with the agency in writing. Without such assurances, and without submitted follow-up questions, an offeror must assume that the clock has started from the end of the debriefing, not the end of the two-day window.

Still Effective: Four Takeaways from the FY 2019 GAO Protest Statistics

Luke W. Meier and Albert B. Krachman

The Government Accountability Office (“GAO”) has released its Annual Report to Congress summarizing bid protest activity for Fiscal Year 2019 (B-158766). The report shows that the number of protests has fallen, the effectiveness rate has remained high and remarkably stable, and hearings have made a bit of a comeback.

The chart below summarizes the GAO protest statistics from FY 2014 to FY 2019.

Here are four key takeaways from the latest report. Continue reading “Still Effective: Four Takeaways from the FY 2019 GAO Protest Statistics”

GSA Announces Pilot Plan for Commercial E-Commerce Portals

Luke W. Meier

The effort to create an “Amazon-like” market for Government purchasing has taken another step forward. After completing its market consultation phase, the General Services Administration (“GSA”) has now put forth a proposal for an e-commerce test portal, through which federal agencies will be able to purchase commercial products from a select group of vendors that will set up new online marketplaces specifically for federal purchasing. (See Phase II Report here.)

To simplify regulatory requirements, all purchases on the test portal must be within the micro-purchase threshold—currently $10,000 for most types of purchases. To expand the breadth of its trial run, GSA has asked Congress to temporarily raise the micro-purchase threshold to $25,000 “for a limited period of five years,” only with respect to purchases “through GSA-approved commercial e-commerce portals.”

The scope of the trial program also will depend on which (and how many) vendors receive the “initial proof of concept contracts” to sell products through portals during the trial run. To avoid being locked in to a single supplier, GSA has said it needs “at least two [vendors] or we won’t award.” Will Amazon itself be a vendor? Right now, GSA says it is unclear “if Amazon will compete” for a spot in the pilot program.

Contractors with an interest in the direction of this effort should continue to express their views. Feedback from the pilot program will guide GSA’s next steps as it decides how to move forward with the commercial e-commerce purchasing concept.

FY 2018 GAO Protest Statistics Show Continued Success through Corrective Action

Luke W. Meier and Ioana Cristei

The Government Accountability Office (“GAO”) has released its Annual Report to Congress detailing the bid protest statistics for Fiscal Year 2018 (B-158766). The report shows a continuation of recent trends: the sustain rate is low; overall success is nevertheless quite strong; and hearings have become nearly extinct.

The GAO issued a decision on the merits for 622 protests in FY 2018. That represents only a fraction of the 2,607 total protests received, but is the most decisions GAO has issued in at least 10 years. As is typically the case, less than 20 percent of those protests resulted in “sustain” decisions finding in favor of the protester—just 92 protests, or 15 percent of those decided in FY 2018. Despite that seemingly grim rate of success in merits decisions, protesters’ overall rate of success, what GAO terms the “effectiveness” rate, continues to hover around 45 percent. As before, protesters are obtaining desired relief in nearly half of all protests filed—but their “win” typically comes well before a final merits decision with the agency taking voluntary corrective action, usually within the first 30 days of the protest, before the agency report has been filed. Continue reading “FY 2018 GAO Protest Statistics Show Continued Success through Corrective Action”