Alert: Gov't Appeals COFC Decision on Enhanced Debriefings and CICA Stay
In a relatively rare occurrence, the Government is appealing a U.S. Court of Federal Claims' ("COFC") bid protest decision in NIKA Techs., Inc. v. United States, No. 20-299C (Fed. Cl. Apr. 16, 2020) to the U.S. Court of Appeals for the Federal Circuit (Fed. Cir. Case No. 20-1924).
In its appeal, the Government will be seeking clarity on an all too important issue facing defense contractors and procuring officials in negotiated procurements: where an unsuccessful offeror does not submit additional questions pursuant to the Department of Defense's ("DoD") enhanced debriefing rules, when is the required debriefing closed?
The Government's appeal presents the Federal Circuit with a unique opportunity to clarify this issue before another COFC judge issues a conflicting ruling. A conflicting decision could create confusion for defense contractors because decisions of the COFC are not binding on one another.
The timeline in NIKA is relatively straightforward:
February 27 – The agency notified NIKA that it was unsuccessful offeror.
February 28 – NIKA requested a debriefing.
March 4 – The agency provided NIKA with a written debriefing, including the option to "submit additional questions related to this debriefing within two (2) business days after receiving the debriefing." The agency's letter also stated "that '[t]he [g]overnment will consider the debriefing closed if additional questions are not received within (2) business days. If additional questions are received, the [g]overnment will respond in writing within five (5) business days . . . [and] will consider the debriefing closed upon delivery of the written response to any additional questions.'"
March 5 – NIKA acknowledged the letter and noted that it would follow up if it had additional questions.
March 7 – NIKA informed the agency that it did not have any additional questions.
March 10 – NIKA filed a GAO bid protest and sought an automatic stay of performance pursuant to 4 C.F.R. § 21.6[,] 31 U.S.C. § 3553(c)(1), and FAR § 33.104(b)(1). Shortly thereafter, the agency filed a response indicating that March 9 was the deadline to obtain a CICA stay.
March 16 – NIKA filed a protest at COFC challenging the agency's decision to not implement the automatic CICA stay.
As noted above, because NIKA did not submit any additional questions, the date the debriefing closed was subject to two interpretations. The Government argued that it was on March 4, the date on which NIKA received its written debriefing. Conversely, NIKA argued that it was on March 6, the date on which additional questions were due. The COFC decision was relatively brief, as it focused on the CICA stay statute and enhanced debriefing statute. In DoD procurements, unsuccessful offerors are entitled to enhanced debriefing rights:
(B) the debriefing shall include, at a minimum—
(i) the agency’s evaluation of the significant weak or deficient factors in the offeror’s offer;
(ii) the overall evaluated cost and technical rating of the offer of the contractor awarded the contract and the overall evaluated cost and technical rating of the offer of the debriefed offeror;
(iii) the overall ranking of all offers;
(iv) a summary of the rationale for the award;
(v) in the case of a proposal that includes a commercial product that is an end item under the contract, the make and model of the item being provided in accordance with the offer of the contractor awarded the contract;
(vi) reasonable responses to relevant questions posed by the debriefed offeror as to whether source selection procedures set forth in the solicitation, applicable regulations, and other applicable authorities were followed by the agency; and
(vii) an opportunity for a disappointed offeror to submit, within two business days after receiving a post-award debriefing, additional questions related to the debriefing.
10 U.S.C. § 2305(b)(5)(B) (emphasis added). In addition, the CICA stay provides that an automatic stay of performance is triggered where a bid protest is filed by the date ending on the later of "the date that is 10 days after the date of the contract award" or "the date that is 5 days after the debriefing date offered to an unsuccessful offeror for any debriefing that is requested and, when requested, is required." 31 U.S.C. § 3553(d)(4)(A). NIKA's protest focused on the latter provision. [1]
Here, NIKA did not ask additional questions pursuant to enhanced debriefings under § 2305 and filed its protest within five days of March 6 (date when questions were due). NIKA argued that its protest was timely and triggered the automatic CICA stay because "when Section 3553 is read in conjunction with Section 2305, the debriefing 'include[s] the two-day window following receipt of the March 4 [debriefing] letter in which NIKA had an opportunity to submit questions.'" As a result, the "date" the debriefing closed, NIKA argued, was on March 6, not March 4.
On the other hand, the Government argued that NIKA's protest did not trigger the automatic stay because it was not filed within five days of March 4 (date of the debrief letter). In the Government's view, the CICA stay was not triggered because the debriefing closed on the date NIKA received its written debriefing letter because NIKA didn't submit any additional questions. To support its position, the Government advanced three arguments, all of which COFC found unpersuasive.
Ultimately, in ruling for NIKA, the COFC concluded that the debriefing was a process rather than a singular date, as the Government argued. Persuaded by NIKA's assertion that the debriefing process included the 2-day window to present questions, COFC determined that it "neither runs counter to the statutory language nor common debriefing practice." Further, the COFC concluded that the agency's debriefing letter also supported NIKA's argument, noting that the "letter gives no indication that the agency would consider the debriefing closed on the date it was received, that is, March 4, 2020." In COFC's view, this fact also supported NIKA's interpretation that “the debriefing date” under § 3553 was on March 6.
Takeaway
The Government's decision to appeal NIKA is likely welcome news for many in the defense contracting community. A ruling from the Federal Circuit should hopefully resolve any lingering ambiguity as to when a debriefing closes where an unsuccessful offerer does not submit additional questions pursuant to DoD's enhanced debriefing rules. [2]
In the meantime, NIKA does provide some assurances that, in similar cases where no questions are submitted, a debriefing could be considered closed on the due date for submitting questions. As a reminder, however, COFC decisions are not binding on the court, and NIKA was decided on a narrow set of facts, so contractors should take that into consideration where enhanced debriefings are in play.
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[1] For clarity, the statute provides as follows:
(A) The period referred to in paragraphs (2) and (3)(A), with respect to a contract, is the period beginning on the date of the contract award and ending on the later of—
(i) the date that is 10 days after the date of the contract award; or
(ii) the date that is 5 days after the debriefing date offered to an unsuccessful offeror for any debriefing that is requested and, when requested, is required.
(B) For procurements conducted by any component of the Department of Defense, the 5-day period described in subparagraph (A)(ii) does not commence until the day the Government delivers to a disappointed offeror the written responses to any questions submitted pursuant to section 2305(b)(5)(B)(vii) of title 10.
31 U.S.C. § 3553(d)(4).
[2] For example, what if the language in the agency's debriefing letter clearly stated that the debriefing was considered closed as of the date of the debriefing letter unless the unsuccessful offeror submits additional questions?
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