Debriefing & Bid Protest Tipsheet (Feb. 2021 Update)
Now that the U.S. Court of Appeals for the Federal Circuit has issued its decision in Nika Technologies, I am happy to share this updated Debriefing & Bid Protest Tipsheet. [1] The timing could not be more fortuitous, as this is also GovConJudicata's 200th post! On that note, we thank everyone for subscribing and for following us on LinkedIn and Twitter.
As many of our readers know, a debriefing is a powerful tool for government contractors because it is a vehicle for both information gathering and relationship building. To that end, contractors that approach each debriefing in a deliberate, process-oriented manner stand to gain the most out of the experience. Given the numerous benefits flowing from a debriefing, I created this quick desk reference to help contractors prepare for their next debriefing opportunity.
As a reminder, the Debriefing & Bid Protest Tipsheet is for generalized informational purposes only, and should not be relied upon as legal advice for a particular matter. If you need tailored legal advice for a particular debriefing, bid protest, or matter, contact an attorney.
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[1] In Nika, the Federal Circuit grappled with a question of statutory interpretation regarding the interplay between the Department of Defense's ("DoD") enhanced debriefing procedures and the stay of performance under the Competition in Contracting Act (the "CICA stay"). NIKA Techs., Inc. v. United States, No. 2020-1924, 2021 WL 382203 (Fed. Cir. Feb. 4, 2021).
Specifically, where a contractor does not ask additional questions pursuant to DoD's enhanced debriefings, is the 2-day window to ask additional questions part of the debriefing? In reversing the decision from the U.S. Court of Federal Claims, the Federal Circuit answered that question in the negative. In so doing, the court held that the, "plain meaning of the statutory scheme [under DoD's enhanced debriefings] is that when no additional questions are submitted, the “debriefing date” is simply the date upon which the party receives its debriefing. The five-day period described in subparagraph (A)(ii) [i.e., to trigger the CICA stay] begins on the debriefing date, rather than two days later." Thus, when DoD's enhanced debriefings are in play, contractors should always take advantage of the opportunity and ask additional questions.
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