Protest challenging award is dismissed as untimely. The protester filed a protest within 10 days after receiving a debriefing. But a debriefing only extends the protest deadline when the debriefing is required. Under statute, only executive agencies are required to give a debriefing when requested. The agency in this case was a judicial agency and thus not required to give a debriefing. Because the debriefing was not required, it did not toll the protest deadline.
The Administrative Office of the US Courts issued a solicitation seeking drug testing equipment. The solicitation provided that award would be made to the lowest-priced, technically-acceptable offer. Microgenics Corporation and Siemens Healthcare Diagnostics submitted proposals. Siemens had the lower-priced technically-acceptable proposal and thus received the award.
The agency notified Microgenics of the award on December 1, 2020. Microgenics requested a debriefing, which the agency provided on December 9. Microgenics then filed a protest on December 14.
The agency contended that Microgenics protest was untimely. Under GAO’s bid protest regulations, a protest must be file within ten days of the time the protester knew or should have known the basis of the protest. If a debriefing is requested and required, then, under 41 U.S.C. § 3704(a), a protest must be filed within ten days after the date on which the debriefing is held.
GAO applied to these rules to Microgenics various protest grounds. First, Microgenics challenged the technical acceptability of Siemens proposal. Microgenics claimed this argument was timely because it was filed within ten days of the debriefing.
But GAO noted that plain language of the debriefing statute, 41 U.S.C. § 3704(a), states that only executive agencies are required to hold debriefings. The Administrative Office of the U.S. Courts is not an executive agency; it is an judicial branch agency. Indeed, the Administrative Office’s contracting activities are not governed by the normal procurement statutes of the FAR. Thus, the statutory provision requiring a debriefing did not apply to the agency. Accordingly, the debriefing was not required, and if it was not required, it could not have extended the protest deadline.
Microgenics contended that the agency was required to give a debriefing under its own Guide to Judiciary Policy. But GAO found that the guide was simply the agency’s internal policy, not a statute or regulation that required a debriefing. An agency’s compliance with its own internal policies is not a matter than GAO reviews.
GAO also reasoned that the challenge to Siemens technical acceptability was untimely regardless of the debriefing. Mircrogenics alleged that Siemens’ proposed equipment failed to meet solicitation requirements. But this argument was based on publicly-available information, not anything that Microgenics learned from the debriefing. Thus, this protest argument should have been raised within 10 days of the notice of award.
Microgenics also challenged the conduct of discussions, but GAO found that this argument was even more untimely. Microgenics alleged the agency conducted improper discussions when it asked Microgenics how it would meet the requirements, it then suggested to Siemens that the company meet the requirements the same way, and then it amended the solicitation in a way that favored Siemens. GAO reasoned that if Microgenics objected to this, it should have filed a protest within 10 days after the agency amended to the solicitation. It was too late to protest this issue after award.
Microgenics is represented by Kevin Pinkney and Travis L. Mullaney at Arent Fox, LLP. The intervenor, Siemens, is represented by Jeffrey M Chiow, Robert S. Metzger, Stephen L. Bacon, and Eleanor M. Ross of Rogers Joseph O’Donnell, PC. The agency is represented by Michael K. Greene of the Administrative Office of the U.S. Courts. GAO attorneys Louis A. Chiarella and Peter H. Tran participated in the preparation of the decision.
