Ask Those Questions: Federal Circuit Highlights Required Step for GAO Protesters Seeking Relaxed Automatic Stay Deadline in DOD Procurements

February 23, 2021

Disappointed government contractors and their legal counsel weigh the benefits of filing bid protests at the Government Accountability Office (GAO) versus the Court of Federal Claims (COFC). One of the key benefits to filing a protest with the GAO is that, under the Competition in Contracting Act (CICA) automatic stay provision, a GAO protester who satisfies statutory timing requirements is entitled to a stay of the procurement process through the GAO proceedings. This means the government may not move forward or authorize performance by the apparent awardee while the protest is pending. A recent bid protest involving engineering contractor NIKA Technologies addressed a key deadline for protesters seeking to invoke the CICA automatic stay in Department of Defense (DOD) procurements.

Generally, a protester must file its protest within 10 days after the date of contract award, or five days after the date offered by the agency for a required debriefing, to take advantage of the CICA automatic stay. The 2018 National Defense Authorization Act modified this timing requirement in DOD procurements, by providing that offerors must be given two business days to submit questions after a post-award debriefing, and amending the GAO protest statute to clarify that in DOD procurement protests, the five-day clock for invoking the CICA automatic stay does not begin to run until the agency delivers written responses to the protester’s questions. Debriefings in non-DOD procurements do not incorporate a similar mandatory post-debriefing “question period.”

In NIKA, the protester filed its protest at GAO six days after its debriefing, but sought to invoke the CICA stay on the theory that the debriefing was not closed until the two-business-day “question period” had concluded. A dispute arose between the protester and the Department of the Army concerning the applicability of the automatic stay, and the protester sought relief at the COFC. The COFC agreed with the protester that its GAO protest filing should have triggered the automatic stay, finding that although NIKA had not actually submitted post-debriefing questions to the Department of the Army, the debriefing process was not “closed” until the two-day question period had expired, and thus CICA’s five-day post-debriefing countdown clock did not begin until after the two-business-day question period ended.

On appeal, the U.S. Court of Appeals for the Federal Circuit reversed the COFC, holding that “the plain meaning of the statutory scheme is that when no additional questions are submitted, the ‘debriefing date’ is simply the date upon which the party receives its debriefing.” The Federal Circuit also emphasized that the statutory language establishing the automatic stay timing requirements references a singular “debriefing date,” rather than a “debriefing period,” which the court took as evidence that Congress did not intend to establish a generally applicable two-day extension to CICA’s five-day post-debriefing countdown clock in settings where a protester does not actually submit post-debriefing questions.

NIKA highlights important considerations for DOD contractors to consider in connection with debriefings and potential protests. First, contractors should always seek debriefings, as the debriefing process itself may provide useful competitive insights that can affect the decision on whether to protest. Second, contractors need to be keenly aware that unless they submit post-debriefing questions within the two-business-day window, they must protest within five days of the initial debriefing date (if they wish to invoke CICA’s automatic stay).

A third implication of NIKA, which may be relevant primarily to non-DOD procurements, relates to the method for calculating the CICA stay deadline in those rare situations involving multi-day debriefings. At present, GAO case law holds that if a debriefing spans more than one day, the five-day “automatic stay” clock does not begin to run until the day after the briefing concludes. While the Federal Circuit in NIKA did not address this issue explicitly, its plain language interpretation of the statutory reference to “the debriefing date,” and its emphasis that the debriefing is an event rather than a process, should cause potential protesters in non-DOD procurements to consider beginning the CICA count on the day after the debriefing begins, even if the debriefing is not deemed “closed” until some later date.

The Government Contracts team at McGuireWoods has decades of collective experience assisting contractors and subcontractors on government contracting compliance issues. Based strategically in the Washington, DC, area, our full-service Government Contracts practice leverages McGuireWoods’ strong defense and national security credentials at every step in the procurement process. Our attorneys counsel clients ranging from small businesses to the nation’s largest government contractors on issues arising under the Federal Acquisition Regulation and its agency-specific supplements, and our team regularly assists clients in negotiating significant federal contracts and contract modifications.

We also have the deep experience necessary to defend our clients’ interests in bid protests, in litigation with the government and other contractors, and in investigations and regulatory enforcement actions involving a wide range of federal and state agencies, inspectors general, and law enforcement personnel. We provide these services to clients operating in a broad variety of industries and sectors, including defense, national and homeland security, intelligence support, technology, construction, healthcare, aerospace, and energy.