The Court of Appeals for the Federal Circuit recently reversed a Court of Federal Claims Decision finding that enhanced debriefings extend the time in which a protester may invoke a stay under the Competition in Contracting Act. In Nika Technologies Inc., COFC noted that under the Department of Defense’s enhanced debriefing procedures, offerors have two extra days to ask questions, even though the debriefing period begins to run when the debriefing is received. Therefore, the court held that a protester that had filed a protest six days after receiving a debriefing could still invoke the CICA stay because the debriefing period had not ended until two days after receipt of the debriefing.
The Federal Circuit rejected this reasoning, citing CICA’s plain language stating that a protest must be filed within five days after the debriefing date. The circuit panel reasoned that the use of the singular noun indicated a single debriefing date, not a debriefing period. The court acknowledged that the debriefing may be extended if the protester asks questions, but noted that the protester in this case did not ask any. According to the Federal Circuit, if a protester does not ask debriefing questions, they do not get extra time in which to invoke a CICA stay.
What do the experts say?
Morrison & Foerster: Stays of Performance During a GAO Bid Protest: Federal Circuit Says that Five Days After the Debriefing Date Means Five Days After the Debriefing Date
The Court of Appeals for the Federal Circuit has issued a precedential decision in NIKA Technologies, Inc. v. United States, reversing a decision by the Court of Federal Claims on the timelines for securing a stay of contract performance in post-award protests to the Government Accountability Office (GAO).
Kelley Drye: Federal Circuit’s NIKA Technologies Decision Reinforces Importance of Asking Questions in Debriefings for DoD Procurements
In NIKA Technologies, issued on February 4, 2021, the U.S. Court of Appeals for the Federal Circuit held that when no additional questions are submitted after a DoD debriefing, the debriefing has ended as of the debriefing date, which triggers the five-day period to file a protest at GAO to obtain the CICA stay, rather than two business days after. This Alert summarizes the NIKA Technologies decision and provides some practical guidance to ensure offerors take full advantage of required debriefings.
Obermayer Rebmann Maxwell & Hippel: NIKA Overturned! The Federal Circuit Takes a Different View on Enhanced Debriefings
Followers of this blog will know that debriefings and protests (and more precisely, a debriefing’s potential impact on protest filing deadlines) are a common topic here at GovConExaminer. That’s mostly because the interplay between debriefings and protests is so vital to understand if you want to succeed in this industry. Last year, as part of our series on common bid protest mistakes, we blogged about how required and timely debriefings can impact deadlines, and also about the DoD Enhanced Debriefing Deviation in general. Last summer, we blogged about NIKA Technologies, Inc. v. United States– a case in which the Court of Federal Claims (COFC) provided some additional clarity regarding the DoD Enhanced Debriefing Deviation. Well, turns out, on appeal, the Federal Circuit didn’t quite agree with what COFC had to say. Last week, the Federal Circuit issued its decision in NIKA, overturning the previous COFC ruling.
