GAO Moves the Goalposts: New Post-Debriefing Timeliness Trap for Protesters

The deadlines for filing a GAO protest are short and strictly enforced.  In post-award protests, the general rule is that a company must file its protest within ten days of when the protester knows, or should have known, of its basis of protest.  However, GAO’s regulations provide an exception to this rule for “protests challenging a procurement conducted on the basis of competitive proposals under which a debriefing is requested and, when requested, is required”—in such a situation, “[the] protest shall not be filed before the debriefing date offered to the protester, but shall be filed not later than 10 days after the date on which the debriefing is held.”  4 CFR §21.2(a)(2).

In interpreting this rule, GAO has long held that a debriefing is concluded when the procuring agency says it is concluded.  For example, where an agency provided a written debriefing that stated “[t]his document satisfies the debriefing requirement by providing the basis for the selection decision and contract award in accordance,” but the agency also—during the protest window—indicated its willingness to provide an additional (voluntary) oral debriefing in response to the company’s follow-up questions, GAO found the agency held open the debriefing (or at least created ambiguity with respect to whether the debriefing had been held open), meaning the protest clock started on the date of the later oral debriefing.  Harris IT Servs. Corp., B‑406067 (Jan. 27, 2012).  Similarly, where an agency provided a company with a formal debriefing, but six days later indicated that the debriefing remained open because the agency planned to provide an additional debriefing, GAO concluded that the agency had created “ambiguity as to whether the agency’s debriefing process was continuing,” which held open the time for filing.  Watts-Weitz, JV, B-405475 (Nov. 8, 2011).  And in a more recent protest decision—previously covered here—GAO stated unequivocally that “agency action may extend the time to file a protest by creating an ambiguity regarding whether a debriefing has concluded.”  K&K Indus., Inc., B-420422 (Mar. 7, 2022).  This line of reasoning is also consistent with GAO’s own Bid Protest Guide.  In discussing the timeliness regulation at 4 C.F.R. § 21.2(a)(2), the Guide explains that “[i]n the event, however, that the agency subsequently agrees to another date, the debriefing held on that date will be used as the basis for determining the timeliness of the protest.”  Bid Protests at GAO: A Descriptive Guide, GAO-18-510SP, May 2018 (Tenth Edition) at 10.

GAO did not apply that longstanding precedent in a recent decision,  SMS Data Prods. Grp., Inc., B-423341 (May 29, 2025).  The case involved a procurement where disappointed offerors were entitled to an enhanced debriefing (more details about the enhanced debriefing process are available here).  Although the enhanced debriefing regulations state that companies may submit follow-up debriefing questions to the agency within two business days, the agency informed disappointed offeror SMS that it could submit follow-up debriefing questions within three business days.  Relying on the agency’s statement, SMS submitted its questions on the third day following the initial debriefing.  One week later, without having received answers to its enhanced debriefing questions, SMS filed a protest. 

The intervenor (but notably, not the agency) sought to dismiss the protest, arguing that because the agency had unilaterally extended the time for enhanced debriefing questions, SMS’s debriefing was still open at the time it filed its protest, and its protest was therefore premature.  The argument reflected prior GAO precedent, discussed above, where similar agency statements extended the debriefing period; under the rubric of those decisions, SMS’s debriefing would not have been considered to be concluded until the agency fulfilled its commitment to answer SMS’s questions.   

GAO disagreed, concluding: “In order to extend its debriefing, section 215.506-70(a) of the DFARS required the protester to submit questions to the agency no later than two business days after receiving its written debriefing on February 11.  The protester submitted its questions on February 14, one day later than the deadline set by the regulation.  Therefore, because SMS did not timely submit its questions pursuant to DFARS section 215.506-70(a), the debriefing was considered to be concluded on the date the [initial] debriefing was delivered . . . SMS could not wait to file the protest until the agency provided answers to its untimely submitted questions.” 

It is unclear whether this decision signals a shift away from GAO’s longstanding position that the agency’s actions and statements dictate when the debriefing closes.  In any event, companies should take heed of GAO’s position regarding timeliness under the debriefing exception and, out of an abundance of caution, strictly adhere to the regulatory deadlines, regardless of any contrary guidance or flexibility offered by the agency.  Failure to strictly adhere to the regulatory deadlines could result in the protest being dismissed as either premature or untimely.  Companies considering a protest should coordinate with their protest counsel during the debriefing process to ensure they are complying with all relevant regulatory requirements and GAO precedent.