#GovConThoughts: Bid Protest Highlights GAO's Strict Timeliness Rules and Reminds Firms of the Dangers of Using AI for Brief Writing

[My #govconthoughts series provides a quick take on recent developments in the government contracting space.]

Quick Take

• GAO's bid protest regulations contain strict timeliness rules. When in doubt, file early –– it's better to be dismissed as premature than to be dismissed as untimely.

• Debriefings are only required (in certain procurements) when they are timely requested. Failure to timely request a debriefing means that, if provided, it is not a "required debrief." Voluntary debriefs (those that are not required) do not trigger an exception to GAO's timeliness rule.

• Protesters need not wait for perfect knowledge of all facts before filing a protest. In other words, don't delay filing because you are waiting for the agency to provide more information.

• GAO, again, reminded everyone (in a footnote) that it reserves the right to dismiss any protest or impose sanctions on a protester for submitting briefs with non-existent citations that were generated by AI programs.

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Recently, the Government Accountability Office ("GAO") issued a protest decision involving the tribunal's timeliness rules where debriefings are in play. Contractors should heed this decision as it serves as a cautionary reminder to always keep an eye on timeliness rules (of which there are many) and the proverbial protest shot clock, as well as the importance of cite checking where firms use artificial intelligence ("AI") programs to assist in brief writing.

Briefly, the bid protest of Wright Brothers Aero, Inc., B-423326.2, July 7, 2025, 2025 CPD ¶ __ involved a pair of protests relating to an LPTA procurement for aircraft refueling. Relevant here, the protester was initially unsuccessful. After receiving its February 4 unsuccessful offeror notice (which indicated the price and that there were two offerors), the protester timely protested the award. The agency then took corrective action and, on March 5, GAO dismissed the protest as academic.

On April 15, after receiving the protester's request for an update, the agency told the firm that corrective action had been “completed and closed” and that it awarded the contract. When the protester inquired whether it would be receiving more details, the agency said that “[t]he awardee was the same as the original awardee” and that it had to consult with agency counsel before any more information could be shared. On April 28, the protester followed up and requested a debrief. On May 25, having received no response, the protester filed a protest.

In its second protest, the protester challenged the agency’s evaluation and award, as well as how the agency implemented corrective action following the first protest. In response, the agency argued that the protest was untimely and should be dismissed. While the protester contended that its protest was timely, GAO agreed with the agency and dismissed the protest.

Here, the protester maintained that its protest was timely filed and that it delayed submitting its protest for two reasons: (1) it was waiting for the agency's response to its emails requesting more details about the award decision, and (2) it was waiting for a debriefing.

As to the first argument, the protester argued that its protest was timely because it was waiting to learn the name of the awardee, award amount, and award rationale (i.e., to have a "definitive basis to protest”). GAO concluded, however, that the protester knew the basis of its protest on April 15, when the agency said that it had reaffirmed the award. In GAO's view, the protester had all the information –– from the February 4 notice and April 15 emails –– it needed to timely file a protest.

Specifically, GAO said that the protester was aware of (1) the identity of the awardee; (2) the price; and (3) the basis for award. Indeed, because the agency did not ask for proposal revisions, the protester was on notice that the reaffirmed award was based on initial proposals, meaning the award price was the same. As GAO explained, the lack of "perfect knowledge," under GAO decisions, was no impediment to timely filing its protest. Therefore, because the protester did not file its protest within ten days of April 15, GAO dismissed the protest as untimely under its "strict [timeliness] rules."

For the second argument, the protester claimed its protest was timely because it submitted the protest "within a reasonable timeframe following the breakdown in communication and the absence of a required debriefing.”

GAO acknowledged that the protester requested a debrief and that the agency did not provide one. Nevertheless, GAO easily dispensed this argument, relying on regulations which state that for a debrief to be "required," and therefore trigger GAO's exception, the request must be submitted within three days. [1] Because the protester requested its debriefing on April 28, or 13 days after the April 15 communications, GAO said the debriefing exception did not apply. GAO dismissed the protest.

Takeaways

This decision highlights several important GAO rules and government contracts fundamentals. To begin, GAO strictly applies its timeliness rules (generally, ten days unless an exception applies). When in doubt, contractors should consult with knowledgeable protest counsel or file your protest early (it's better to be dismissed as premature than be untimely).

Further, contractors must also be mindful that GAO's debriefing exception only applies to required debriefs (i.e., those that are both specifically authorized by regulation and that are timely requested). Contractors should therefore make a habit of requesting a debriefing soon after receiving an award notice. And, because GAO's timeliness rules and debriefings are found in regulation, unsuccessful offerors should not delay filing protests, even if you are waiting for more information from the agency.

Finally, the decision also includes an interesting footnote on the use of AI programs to draft protest filings. Here, the protester used an AI program to help with its brief, but the brief included a non-existent case. GAO couldn't locate the case and asked the protester for a copy of the decision. Because the protester admitted that the citation was not real, GAO said that reliance on AI without review wastes time and reminded the firm of its right to dismiss a protest or sanction protesters in situations where a "protester's actions undermine the integrity and effectiveness of our process."

Because GAO dismissed the protest as untimely, it did not impose sanctions for the "submission of a non-existent, AI-generated citation." Protesters should be mindful of GAO's position on using AI programs and carefully cite check all briefs.

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[1] Notably, GAO also cited FAR 15.506 for the proposition that an untimely request for a debriefing “does not automatically extend the deadlines for filing protests.”

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