TITLE:  United International Investigative Services, Inc., B-286327, October 25, 2000
BNUMBER:  B-286327
DATE:  October 25, 2000
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United International Investigative Services, Inc., B-286327, October 25,
2000

Decision

Matter of: United International Investigative Services, Inc.

File: B-286327

Date: October 25, 2000

Alan M. Grayson, Esq., Ira E. Hoffman, Esq., and Deniz H. Hardy, Esq.,
Grayson & Kubli, for the protester.

C. Joseph Carroll, Esq., United States Marshals Service, for the agency.

Glenn G. Wolcott, Esq. and Michael R. Golden, Esq., Office of the General
Counsel, GAO, participated in the preparation of the decision.

DIGEST

Protest based on information obtained during post-award debriefing is not
timely filed where protester who was excluded from competitive range
requested that the debriefing be delayed until after award.

DECISION

United International Investigative Services, Inc. (UIIS) protests the bases
for the United States Marshals Service's exclusion of UIIS's proposal from
the competitive range under request for proposals (RFP) No. MS-00-R-0005 to
provide court security services.

We dismiss the protest as untimely.

BACKGROUND

On April 5, 2000, the agency issued RFP No. MS-00-R-0005 seeking proposals
to provide court security services in the 7th and 9th judicial circuits. [1]
On May 10, UIIS submitted its proposal responding to this solicitation.
Thereafter, the agency evaluated UIIS's proposal as having various
deficiencies with regard to, among other things, contract management and
past performance. On June 8, the agency notified UIIS that its proposal had
not been included in the competitive range. UIIS responded by letter dated
June 9, stating:

In accordance with [Federal Acquisition Regulation] FAR 15.505, United
Investigative Services Inc. requests a debriefing in response to the
Government's determination of exclusion of UIIS from the competitive range .
. . . As provided in FAR 15.505(a)(2), UIIS requests that this debriefing be
delayed until after award.

Letter from UIIS to Contracting Officer (June 9, 2000).

Consistent with UIIS's request, the agency did not schedule a pre-award
debriefing. On September 13, the agency awarded contracts for court security
services in both judicial circuits to another offeror. Thereafter, the
agency provided UIIS with a written debriefing, received by UIIS on
September 19, in which the agency identified the various proposal
deficiencies which had led to exclusion of UIIS's proposal from the
competitive range. On September 22, UIIS filed this protest challenging the
agency's evaluation of its proposal.

The agency requests that UIIS's proposal be dismissed as untimely, arguing
among other things, that by specifically requesting that the agency delay
any debriefing until after a contract had been awarded, UIIS failed to
diligently pursue the information on which its protest is based. The agency
notes that, in requesting the post award debriefing, UIIS specifically
referenced the FAR provision which warns offerors that such requests for
delayed debriefings "could affect the timeliness of any protest filed
subsequent to the debriefing." FAR sect. 15.505(a)(2). [2]

This Office's bid protest timeliness rules provide that protests, other than
those based on alleged solicitation improprieties, shall be filed not later
than 10 days after the basis of the protest is known or should have been
known, with the exception of protests challenging a procurement "under which
a debriefing is requested and, when requested, is required." Bid Protest
Regulations, 4 C.F.R. sect. 21.2(a)(2) (2000). Here, UIIS asserts that its
protest is timely because it was filed within 10 days after its September 19
receipt of the debriefing. We disagree.

The Competition in Contracting Act (CICA), as amended, requires that
offerors who are excluded from the competitive range must be debriefed by
the procuring agency if, within 3 days after receiving notice of such
exclusion, the offeror requests a pre-award debriefing. Specifically, that
statute states:

(1) When the contracting officer excludes an offeror . . . from the
competitive range . . . the excluded offeror may request in writing, within
3 days after the date on which the excluded offeror receives notice of its
exclusion, a debriefing prior to award. . . .

(2) The contracting officer is required to debrief an excluded offeror in
accordance with subsection (e) [which provides for post-award debriefings]
only if that offeror requested and was refused a preaward debriefing under
paragraph (1) of this subsection.

41 U.S.C. sect. 253b(f) (Supp. IV 1998) (emphasis added).

As stated in our timeliness rules, a post-debriefing protest will be
considered timely if filed as late as 10 days after the debriefing, even as
to issues that should have been known before the debriefing, if that
debriefing is "required." As noted above, Congress specifically addressed
the issue of when agencies are required to give post-award debriefings to
offerors excluded from the competitive range, stating that such debriefings
are required "only if that [excluded] offeror requested and was refused a
preaward debriefing." 41 U.S.C. sect. 253b(f).

Here, the record is clear that UIIS did not request a pre-award debriefing.
Rather, UIIS expressly requested that its debriefing be delayed until after
award. Accordingly, we do not view the debriefing provided by the agency on
September 19 as being "required" as contemplated by the controlling statute
and our Bid Protest Regulations. Thus, UIIS may not properly rely on its own
decision to request a

delayed debriefing as a basis to extend the period for filing its protest by
more than 3 months after UIIS received notification of its exclusion from
the competitive range.

Since UIIS's debriefing does not fall within the exception to the general
requirement, stated above, that protests must be filed no later than 10 days
after the basis of the protest is known or should have been known, 4 C.F.R.
sect. 21.2(a)(2), we next consider whether UIIS's decision to delay seeking the
information on which its protest is based was consistent with the obligation
to diligently pursue that information. A protester may not passively await
information providing a basis for protest; rather, a protester has an
affirmative obligation to diligently pursue such information, Automated Med.
Prods. Corp., B-275835, Feb. 3, 1997, 97-1 CPD para. 52 at 2-3, and a
protester's failure to utilize the most expeditious information-gathering
approach

may constitute a failure to meet its obligation in this regard. See, e.g.,
Thomas May Constr. Co., B-255683, Mar. 23, 1994, 94-1 CPD para. 210 (protester
did not diligently pursue its basis for protest where it waited until after
it received notice of award to file Freedom of Information Act requests to
seek information that was publicly available at bid opening). Our timeliness
rules reflect the dual requirements of giving parties a fair opportunity to
present their cases and resolving protests expeditiously without unduly
disrupting or delaying the procurement process. Air Inc.--Recon.,
B-238220.2, Jan. 29, 1990, 90-1 CPD para. 129 at 2.

Here, UIIS's protest is based on the information it ultimately obtained
regarding the multiple deficiencies in its own proposal. [3] Clearly, any
pre-award debriefing which UIIS could have received--but for its specific
request to delay receipt of this information--would have contained the very
information on which its protest is now based. Further, as noted above, the
very regulatory provision on which UIIS relied in its request to delay the
debriefing warns offerors that such requests may affect the timeliness of
subsequently filed protests. On the facts here, we find that UIIS's request
to delay receipt of the information regarding deficiencies in its own

proposal does not constitute the diligent pursuit contemplated by our Bid
Protest Regulations. In short, we consider the protest to be untimely.

The protest is dismissed.

Anthony H. Gamboa

Acting General Counsel

Notes

1. UIIS is the incumbent contractor for court security services in the 9th
judicial circuit.

2. Section 15.505 of the FAR states:

Offerors excluded from the competitive range or otherwise excluded from the
competition before award may request a debriefing before award (10 U.S.C.
2305(b)(6)(A) and 41 U.S.C. 253b(f) – (h)).

. . . . .

At the offeror's request, this debriefing may be delayed until after award.
. . . Debriefings delayed pursuant to this paragraph could affect the
timeliness of any protest filed subsequent to the debriefing.

3. Indeed, it is clear that UIIS was fully aware that the debriefing would
provide this type of information. In its letter to the agency requesting
that the debriefing be delayed, UIIS stated:

UIIS also requests a detailed listing and breakdown of any weaknesses and
deficiencies found in its proposal, together with any strengths and
advantages you may have identified. Through such a detailed approach, UIIS
hopes to become more responsive for its next submittal to the U.S. Marshals
Service.

Letter from UIIS to Contracting Officer (June 9, 2000).