[Pillsbury] previously [has] discussed (here and here) the “enhanced debriefings” that DoD agencies have instituted for procurements conducted under Part 15 of the Federal Acquisition Regulation (FAR). These rules provide that a DoD agency “shall not consider the post-award debriefing to be concluded until the agency delivers its written responses to the unsuccessful offeror” and the “agency shall comply with the requirements of FAR 33.104(c) regarding the suspension of contract performance.” FAR 33.104(c), in turn, echoes the requirements of CICA, 31 U.S.C. § 3553(d)(4)(A), which provides that a protester is entitled to an automatic stay of performance if its protest to GAO is filed within the later of two dates: (1) “the date that is 10 days after the date of the contract award”; or (2) “the date that is five days after the debriefing date offered to an unsuccessful offeror for any debriefing that is requested and, when requested, is required.”
Last year, [Pillsbury] covered the decision of the COFC in NIKA Technologies, Inc. v. United States, 147 Fed. Cl. 690 (2020), which held that, for procurements subject to DoD rules, the five-day filing clock to obtain an automatic stay of performance under CICA will not start running until two business days after a disappointed offeror receives its post-award debriefing. On appeal, the Federal Circuit reversed, holding that the five-day countdown begins to run [“on the debriefing date, rather than two days later.”].
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