On March 7, 2022, the Government Accountability Office (GAO) dismissed a protest in the Matter of K&K Industries, Inc. B-420422; B-420422.2, finding the protest untimely because it had been filed more than ten days after enhanced debriefing concluded. This decision serves as another reminder that when it comes to bid protest litigation before the GAO specifically, timeliness matters, and the protest clock starts after an agency definitively concludes a requested and required debriefing. Additionally, this decision reinforces the rule that when an original protest is untimely, the GAO will dismiss both the original protest and all supplemental protest grounds.
The Department of the Army, Army Corps of Engineers (the “Agency”) issued a solicitation for the design and renovation of a historic barracks building in Fort Riley, Kansas. K&K Industries, Inc. (“K&K” or the “Protester”) competed for award under this solicitation, but the Agency ultimately made award to another offeror and notified K&K of its decision on September 28, 2021. K&K then timely requested a debriefing and a redacted version of the Source Selection Decision Document (“SSDD”). The significant dates and events that followed were operative in the GAO’s ultimate decision:
- On October 13, 2021, the Agency provided K&K with its initial debriefing as requested. This debriefing noted, in pertinent part, that the Agency was preparing a redacted SSDD and would provide it to K&K upon completion. Additionally, the Agency noted that upon receipt of the SSDD, any additional questions must be submitted within two days, and failing to submit additional questions in this two-day timeframe would conclude the debriefing.
- On Friday, October 22, 2021, K&K received the SSDD and timely submitted additional questions to the Agency within two days. The agency responded to K&K’s additional questions on November 17, 2021, and stated, in pertinent part, that “[t]his concludes your written debriefing.”
- On November 19, 2021, K&K posed additional questions to the Agency regarding the subject procurement.
- On November 23, 2021, the Agency responded to these additional questions. Again, the Agency’s response stated that “[a]ny additional questions must be submitted by December 1, 2021. This concludes your written debriefing.”
- On November 24, 2021, K&K tendered another new round of questions related to its debriefing, and the Agency responded on December 13, 2021, noting, among other things, that: “This concludes your written extended debriefing.”
On December 20, 2021, K&K filed a protest challenging the Agency’s best value determination and ultimate award decision. The Agency defended its award decision on the merits, and K&K filed comments and supplemental protest grounds in response thereto. Interestingly, on its own accord, the GAO then required both parties to submit written arguments on whether the protest should be dismissed as untimely.
Typically, an offeror has ten days to file a protest after receiving notice of an unfavorable award decision. This timeframe is extended if the offeror requests a debriefing and if the requested debriefing is required by Federal Acquisition Regulation (“FAR”) or FAR supplements. The timeframe for protesting can be further extended for Department of Defense (“DoD”) procurements, for which the offeror is entitled to one additional iteration of questions and responses upon request (an enhanced debriefing) after the initial debriefing.
The GAO found that the Protester’s initial October 13, 2021 debriefing did not close until the Protester received the SSDD, posed additional questions, and received the Agency’s response to its additional questions on November 17, 2021. By timely posing new questions on November 19, 2021, K&K exercised its entitlement to an enhanced debriefing. The Agency answered K&K’s additional questions in its November 23, 2021 response, which also provided that “[a]ny additional questions must be submitted by December 1, 2021. This concludes your written debriefing.” The GAO found that November 23, 2021 marked the close of K&K’s enhanced debriefing, and the start of K&K’s 10-day clock for filing a bid-protest. Therefore, to be timely, the GAO found that K&K’s protest should have been filed on December 3, 2021. However, K&K did not file its protest on December 3, 2021. Instead, K&K posed a new round of questions on November 24, the Agency responded to those questions on December 13, 2021, and K&K filed its protest on December 20, 2021.
K&K argued that its protest was timely, because when it posed additional questions on November 24, the Agency’s December 13th response to these questions either reopened K&K’s debriefing, or created an ambiguity as to whether the debriefing remained open. The GAO disagreed finding that: (1) the Agency clearly and unequivocally closed K&K’s enhanced debriefing on November 23, 2021; (2) the Agency’s responses to questions after enhanced debriefing closed were voluntary and did not extend K&K’s protest window; and (3) K&K cannot argue that the Agency’s December 13, 2021 response rendered it ambiguous as to whether K&K’s debriefing was closed, as the Agency’s response was outside K&K’s 10-day protest window, which ended on December 3, 2021. Therefore, the GAO dismissed the Protest as untimely, along with each supplemental protest ground that K&K raised.
- The Parties to a protest need not raise “timeliness” as an issue for it to be challenged. The GAO may raise an issue with timeliness on its own accord.
- After an initial and enhanced debriefing has unequivocally concluded, a protester cannot unilaterally extend its timeline to protest by asking additional debriefing questions.
- Enhanced debriefing procedures entitle the protester to one additional iteration of questions and answers after the initial debriefing concludes.
- An agency’s actions within the 10-day post-debriefing protest window may extend the protester’s time to protest by creating an ambiguity as to whether a debriefing is closed or remains open. However, agency action outside this protest window cannot retroactively cause an ambiguity and thereby extend the timeframe in which a protest must be filed. Once a protest is untimely, it cannot be revived by agency action.
- If the GAO dismisses a protest as untimely, it will also dismiss any supplemental protest grounds raised.