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The GAO’s recent selection in K&K Industries, Inc. reinforces for unhappy offerors that the moment the authorities unequivocally states that a debriefing has concluded, the clock has started out ticking on the time to file a protest. Notably, this can be correct even if the events continue on talking about the offeror’s proposal.
The History
On September 28, 2021, the U.S. Military Corps of Engineers (USACE) notified K&K Industries, Inc. (K&K) that it experienced awarded Blinderman Construction, Co. (Blinderman) a deal involving the style and renovation of a historic barracks creating in Fort Riley, Kansas. This discover also knowledgeable K&K that the corporation had a ideal to ask for a debriefing. K&K well timed asked for the debriefing and questioned that the debriefing consist of a redacted copy of the Source Assortment Decision Document (SSDD).
USACE presented K&K with an original created debriefing on October 13, 2021, which said, in section, that the agency was planning the redacted variation of the SSDD. This letter also expressed that must K&K “have any additional inquiries you should submit them to [the contracting officer] no later than two days immediately after acquiring the redacted SSDD. If no even more questions are asked after receipt of the SSDD, K&K Industries’ published debriefing will conclude.”
On October 22, 2021, USACE sent K&K the redacted SSDD. Availing alone of the two company days inside which to submit additional questions, K&K submitted added issues to the contracting officer on Oct 25, 2021. On November 17, 2021, the agency responded to K&K’s supplemental thoughts and said, “This concludes your penned debriefing.” USACE’s reaction produced no point out of K&K publishing additional inquiries. Nonetheless, on November 19, 2021, K&K despatched USACE a 2nd round of concerns, which USACE answered 4 times later. In that response, USACE said, “Any additional thoughts will have to be submitted by December 1, 2021. This concludes your prepared debriefing.” The next working day, K&K submitted additional questions to USACE. On December 13, 2021, the agency responded to K&K’s 3rd round of queries. This response also specified, “This concludes your penned prolonged debriefing.”
On December 20, 2021, K&K filed its protest at the GAO, alleging that the agency had improperly evaluated its proposal. Subsequently, on January 31, 2022, K&K submitted a supplemental protest primarily based on information gleaned from the January 19, 2022 agency report.
The GAO subsequently asked for that the functions submit arguments as to regardless of whether K&K’s protest should be dismissed as premature.
The Selection
The GAO identified that K&K’s extended debriefing concluded no afterwards than November 23, 2021, when USACE unequivocally communicated that the debriefing experienced concluded. As these types of, K&K was necessary to file its protest no later on than December 3, 2021. Since K&K did not file its protest until finally December 20, 2021, not only was K&K’s original protest untimely but so way too was K&K’s supplemental protest, which was dependent on information and facts from the agency report submitted in response to K&K’s premature preliminary protest.
Where a debriefing is required, a protest have to be filed no afterwards than 10 days right after the debriefing is concluded. Therefore, the GAO’s selection turned on when K&K’s required debriefing concluded. Pursuant to the DoD’s enhanced debriefing methods, if the offeror submits extra concerns within just two company times right after receipt of its penned debriefing, an agency shall not consider the debriefing to be concluded until finally the company has sent its responses to the unhappy offeror. Citing a previous GAO decision, the GAO stated that improved debriefing legal rights entitle a dissatisfied offeror to only just one round of essential thoughts and solutions. Soon after an agency unequivocally states that the debriefing is concluded, an agency’s voluntary response to more rounds of post-debriefing thoughts does not lengthen the time for filing a protest. Furthermore, “a upset offeror can’t lengthen the debriefing by asking even further inquiries.”
The GAO differentiated K&K’s situation from all those in other protests where by the agency’s actions made ambiguity as to whether or not the debriefing experienced concluded. Right here, the GAO identified no these types of ambiguity, stating that the agency’s November 23, 2021 assertion in response to K&K’s 2nd set of issues was very clear and complete in asserting that the debriefing had concluded. The GAO held that the agency’s assertion that K&K needed to post supplemental inquiries by December 1, 2021 was just an offer to voluntarily respond to further thoughts, not an expression by USACE to lengthen the debriefing. With regard to K&K’s argument that USACE’s response to K&K’s 3rd set of queries created ambiguity regarding the impact of the agency’s November 23, 2021 assertion that the debriefing had concluded, the GAO held this later statement did not change its summary that the agency’s November 23 statement was unambiguous. In any function, the GAO noticed that extra than 10 times experienced passed amongst the agency’s November 23 and December 13 responses for that reason, the time to file a protest experienced expired right before USACE’s alleged ambiguous assertion relating to the conclusion of K&K’s debriefing. In other text, USACE could not revive K&K’s previously untimely protest. And finally, the GAO identified that for the reason that K&K’s first protest was premature, so much too was K&K’s supplemental protest centered on data contained in the company report filed in the preliminary protest.
The Takeaway
An agency’s unequivocal assertion that an improved debriefing has concluded suggests that a contractor is on the clock to file a timely protest. A contractor cannot lengthen the debriefing by publishing additional inquiries to the company, as only company motion can prolong a debriefing. Additional, the GAO has identified that increased debriefing legal rights entitle a dissatisfied offeror to only one particular spherical of inquiries and responses, making it significant that contractors spend close consideration to the phrases utilised by the agency when talking about the debriefing period of time if not, they operate the danger of filing an premature protest.
If you have any inquiries on this subject or would like to explore troubles connected to an agency’s debriefing, our Authorities Contracting Team is out there to guide you on this or any other authorities contracting issues.