The GAO’s recent decision in K&K Industries, Inc. reinforces for disappointed offerors that once the government unequivocally states that a debriefing has concluded, the clock has started ticking on the time to file a protest. Notably, this can be true even if the parties continue discussing the offeror’s proposal.
The Background
On September 28, 2021, the U.S. Army Corps of Engineers (USACE) notified K&K Industries, Inc. (K&K) that it had awarded Blinderman Construction, Co. (Blinderman) a contract involving the design and renovation of a historic barracks building in Fort Riley, Kansas. This notice also informed K&K that the company had a right to request a debriefing. K&K timely requested the debriefing and asked that the debriefing include a redacted copy of the source selection decision document (SSDD).
USACE provided K&K with an initial written debriefing on October 13, 2021, which stated, in part, that the agency was preparing the redacted version of the SSDD. This letter also expressed that should K&K “have any additional questions please submit them to [the contracting officer] no later than two days after receiving the redacted SSDD. If no further questions are asked after receipt of the SSDD, K&K Industries’ written debriefing will conclude.”
On October 22, 2021, USACE sent K&K the redacted SSDD. Availing itself of the two business days within which to submit further questions, K&K submitted additional questions to the contracting officer on October 25, 2021. On November 17, 2021, the agency responded to K&K’s additional questions and stated, “This concludes your written debriefing.” USACE’s response made no mention of K&K submitting additional questions. Nevertheless, on November 19, 2021, K&K sent USACE a second round of questions, which USACE answered four days later. In that response, USACE stated, “Any additional questions must be submitted by December 1, 2021. This concludes your written debriefing.” The following day, K&K submitted more questions to USACE. On December 13, 2021, the agency responded to K&K’s third round of questions. This response also specified, “This concludes your written extended 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 filed a supplemental protest based on information gleaned from the January 19, 2022 agency report.
The GAO subsequently requested that the parties submit arguments as to whether K&K’s protest should be dismissed as untimely.
The Decision
The GAO found that K&K’s extended debriefing concluded no later than November 23, 2021, when USACE unequivocally communicated that the debriefing had concluded. As such, K&K was required to file its protest no later than December 3, 2021. Because K&K did not file its protest until December 20, 2021, not only was K&K’s initial protest untimely but so too was K&K’s supplemental protest, which was based on information from the agency report submitted in response to K&K’s untimely initial protest.
Where a debriefing is required, a protest must be filed no later than 10 days after the debriefing is concluded. Thus, the GAO’s decision turned on when K&K’s required debriefing concluded. Pursuant to the DoD’s enhanced debriefing procedures, if the offeror submits additional questions within two business days after receipt of its written debriefing, an agency shall not consider the debriefing to be concluded until the agency has delivered its responses to the disappointed offeror. Citing a previous GAO decision, the GAO explained that enhanced debriefing rights entitle a disappointed offeror to only one round of required questions and answers. After an agency unequivocally states that the debriefing is concluded, an agency’s voluntary response to additional rounds of post-debriefing questions does not extend the time for filing a protest. Furthermore, “a disappointed offeror cannot extend the debriefing by asking further questions.”
The GAO differentiated K&K’s circumstances from those in other protests where the agency’s actions created ambiguity as to whether the debriefing had concluded. Here, the GAO found no such ambiguity, stating that the agency’s November 23, 2021 statement in response to K&K’s second set of questions was clear and absolute in asserting that the debriefing had concluded. The GAO held that the agency’s statement that K&K needed to submit additional questions by December 1, 2021 was merely an offer to voluntarily answer additional questions, not an expression by USACE to extend the debriefing. With respect to K&K’s argument that USACE’s response to K&K’s third set of questions created ambiguity regarding the impact of the agency’s November 23, 2021 statement that the debriefing had concluded, the GAO held this later statement did not alter its conclusion that the agency’s November 23 statement was unambiguous. In any event, the GAO observed that more than 10 days had passed between the agency’s November 23 and December 13 responses; therefore, the time to file a protest had expired before USACE’s alleged ambiguous statement concerning the conclusion of K&K’s debriefing. In other words, USACE could not revive K&K’s already untimely protest. Lastly, the GAO found that because K&K’s initial protest was untimely, so too was K&K’s supplemental protest based on information contained in the agency report filed in the initial protest.
The Takeaway
An agency’s unequivocal statement that an enhanced debriefing has concluded means that a contractor is on the clock to file a timely protest. A contractor cannot extend the debriefing by submitting further questions to the agency, as only agency action can extend a debriefing. Further, the GAO has found that enhanced debriefing rights entitle a disappointed offeror to only one round of questions and answers, making it critical that contractors pay close attention to the words used by the agency when discussing the debriefing period; if not, they run the risk of filing an untimely protest.
