Don't Wait: FAR Part 36 Offerors Must Protest Within 10 Days of an Unsuccessful Offeror Notice

Companies competing in federal architect-engineer and design-build procurements under Federal Acquisition Regulation (FAR) Part 36 should be aware of a critical – and frequently misunderstood – timeliness requirement that can make or break a bid protest at the U.S. Government Accountability Office (GAO). Unlike procurements conducted under FAR Part 15, where a protest filed before an award has been made is premature and the protest clock is extended by a post-award debriefing, procurements conducted under FAR Subpart 36.6, Architect-Engineer (A/E) Services and FAR Subpart 36.3 (Two-Phase Design-Build Selection Procedures) have separate protest timeliness rules.

Because awards of FAR Subpart 36.6 procurements are not considered procurements "conducted on the basis of competitive proposals," if an unsuccessful offeror waits until after the agency publicly announces the awardee to file a protest, the protest will almost certainly be dismissed as untimely.

This article discusses three GAO decisions that illustrate this rule and explains what options remain for offerors who miss the 10-day window.

The 10-Day Rule and the Debriefing Exception

GAO's Bid Protest Regulations generally require that a protest based on other than alleged solicitation improprieties be filed no later than 10 calendar days after the protester knew, or should have known, of the basis for protest, whichever is earlier. An important exception exists for procurements "conducted on the basis of competitive proposals under which a debriefing is requested and, when requested, is required." In those cases – typically FAR Part 15 and FAR Part 16 procurements – the 10-day clock does not begin to run until after the debriefing is held.

However, the term "competitive proposals" is a term of art. GAO has consistently held that FAR Subpart 36.6 procurements are not conducted on the basis of competitive proposals because they follow the procedures established by the Brooks Act, 40 U.S.C. §§ 1101–1104, rather than the negotiated procedures prescribed by FAR Part 15. Under FAR Subpart 36.6, agencies do not issue a traditional solicitation, and firms do not submit proposals; instead, the agency issues a synopsis, firms submit Standard Form 330 qualification statements, and the agency evaluates and ranks firms based on qualifications alone, without considering price. FAR § 6.102 further reinforces this distinction by categorizing Brooks Act procedures as "other competitive procedures" under subsection (d), separate and apart from "competitive proposals" under subsection (b).

The result is that even though FAR § 36.607(b) requires debriefings after final selection and incorporates certain FAR Part 15 debriefing procedures by reference, those debriefings do not trigger the debriefing exception to GAO's timeliness rules. In a FAR Subpart 36.6 procurement, the protest clock begins to run when the offeror receives its unsuccessful offeror notice.

Three Cases That Drive the Point Home

Matter of McKissack-URS Partners, JV (B-406489.2, May 22, 2012)

The seminal case on this issue is McKissack-URS Partners, JV, in which the U.S. Department of Labor conducted an A/E procurement under the Brooks Act and FAR Subpart 36.6 for design and construction management support services. On February 28, 2012, the agency informed the protester, McKissack, that another offeror had been selected as the most preferred firm. McKissack requested a debriefing on February 29 and repeated its request on March 2 and March 13, but the debriefing was not provided. McKissack then filed a protest on March 26, more than 10 days after learning of the agency's selection decision.

GAO dismissed the protest as untimely, holding that the debriefing exception to its timeliness rules applies only to procurements conducted on the basis of "competitive proposals" and that an A/E procurement under the Brooks Act and FAR Subpart 36.6 does not qualify.

Matter of Battelle Memorial Institute (B-420403, March 10, 2022)

In Battelle, the U.S. Navy issued a synopsis under FAR Subpart 36.6 for A/E environmental cleanup services. The Navy evaluated SF 330 submissions and, on April 23, 2021, notified all slated offerors of the identity of the most highly qualified firm. In the notice, the Navy offered pre-award or post-award debriefings.

Battelle initially requested a pre-award debriefing on April 24, 2022, but two days later changed its request to a post-award debriefing. About seven months later, on November 30, 2022, the Navy awarded the contract to the identified highest-rated firm. Battelle learned of the award on December 1, 2022, received a written debriefing on December 9 and filed its protest on December 10.

GAO dismissed the protest as untimely, citing McKissack-URS for the proposition that the debriefing exception does not apply to FAR Subpart 36.6 procurements. Critically, GAO found that Battelle had failed to diligently pursue information that could have formed the basis of its protest. GAO's rationale was that Battelle's challenge was not to the ultimate award decision but the agency's evaluation of its SF 330 and the decision to rank the awardee as the most highly qualified firm – information Battelle knew or could have known in April 2021.

Notably, GAO rejected Battelle's argument that a protest filed before the ultimate award decision would have been premature, pointing to multiple prior decisions in which protests challenging the selection of a most highly qualified firm were decided on the merits before any contract had been awarded.

Matter of Venergy Group, LLC (B-422708, September 10, 2024)

Venergy Group extended the McKissack-URS rationale beyond FAR Subpart 36.6 to phase one of a two-phase design-build procurement conducted under FAR Subpart 36.3. The U.S. Army issued a solicitation for general and design-build construction projects and, on June 12, 2024, the agency notified Venergy that it was not selected to participate in phase two. Enclosed with the notice was the agency's full assessment of Venergy's phase one proposal. The notice also stated that Venergy was "entitled to one debriefing" before award "[i]n accordance with FAR 15.505."

Venergy requested a debriefing on June 15, received a response to its debriefing question on June 20, 2024, and filed a protest on June 30.

GAO dismissed the protest as untimely because it had been filed more than 10 days after the June 12 unsuccessful offeror notice. GAO held that phase one of a FAR Subpart 36.3 design-build procurement is not conducted on the basis of competitive proposals because the phase-one procedures do not require compliance with FAR Part 15, which applies only to phase two.

GAO also rejected Venergy's reliance on the contracting officer's statement that the debriefing was being offered "[i]n accordance with FAR 15.505," holding that "a contracting officer's mischaracterization of a debriefing is not determinative of whether a debriefing is a required one." This is an important lesson: Even if the agency tells you that you are "entitled" to a debriefing under FAR Part 15, that representation alone does not convert the debriefing into a required one for timeliness purposes.

Practical Takeaways for Offerors

The lesson from these three decisions is clear. If you are competing in a procurement conducted under FAR Subpart 36.6 (architect-engineer services) or phase one of a FAR Subpart 36.3 (two-phase design-build) procurement, you must file any GAO protest within 10 calendar days of receiving your unsuccessful offeror notice. Even if the notice does not identify the presumptive awardee, as long as it informs you that you are not the most highly qualified offeror, that notice triggers the start of the 10-day clock to protest at GAO. Though offerors may take advantage of opportunities for "debriefings," it is crucial to understand that these "debriefings" do not toll the GAO protest timeliness clock.

Do not wait for a debriefing. Do not wait for the agency to announce the ultimate awardee. If you do, your protest is at risk of dismissal as untimely.

An Alternative Forum: The Court of Federal Claims

Still, even if an offeror misses the 10-day GAO filing window, all is not lost. The U.S. Court of Federal Claims (COFC) provides an alternative forum for bid protests that does apply the same strict 10-day timeliness requirement. Under the Tucker Act, 28 U.S.C. § 1491(b), the COFC has jurisdiction over bid protests and applies a six-year statute of limitations rather than GAO's rigid 10-day rule. Though COFC protests are subject to a laches analysis (unreasonable and prejudicial delay can still bar a protest), the court does not mechanically dismiss a protest simply because it was filed more than 10 days after the protester learned of its basis.

Pursuing a protest at the COFC also offers certain advantages beyond the more flexible filing timeline. COFC typically requires a more robust administrative record and review process. Moreover, COFC proceedings afford the parties the opportunity for oral argument, providing an opportunity to present one's case that exceeds what is typically available in GAO's expedited protest process.

Conclusion

The GAO's timeliness rules in FAR Part 36 procurements present a trap for the unwary. Unsuccessful offerors in these competitions must protest within 10 days of receiving an unsuccessful offeror notice if they wish to be timely at GAO. Companies that assume they can wait for a debriefing or an award announcement before filing a protest risk having their challenge dismissed without any consideration of the merits.

For those who find themselves on the wrong side of the 10-day deadline, the COFC remains a viable and, in many respects, an advantageous alternative.

For questions about FAR Part 36 procurements and your options for filing a protest, please contact the authors.