Loc Performance Products, Inc.

B-417431 Apr 22, 2019 Jump To VIEW DECISION DOWNLOADS RELATED PAGES GAO CONTACTS Highlights Loc Performance Products, Inc., a small business of Plymouth, Michigan, protests its exclusion from the competitive range, and the agency's determination of affirmative responsibility for Ibis Tek, Inc., under solicitation No. W15QKN-18-R-0004 issued by the Department of Army for armor hardware, turret systems, and platform integration kits. The protester alleges that the agency erred in several respects in evaluating its proposal, and additionally erred in conducting a responsibility determination for Ibis Tek. We dismiss the protest. We dismiss the protest. View Decision Decision Matter of:  Loc Performance Products, Inc. File:  B-417431 Date:  April 22, 2019 Christian B. Nagel, Esq., Edwin O. Childs, Jr., Esq., Blake R. Christopher, Esq., Nathan R. Pittman, Esq., McGuire Woods LLP, for the protester. Debra J. Talley, Esq., Department of the Army, for the agency. Michael Willems, Esq., and Edward Goldstein, Esq., Office of the General Counsel, GAO, participated in the preparation of the decision. DIGEST Protest filed based on information obtained during post-award debriefing is not timely filed where protester who was excluded from competitive range declined a required pre‑award debriefing in favor of a post-award debriefing that was not required. DECISION Loc Performance Products, Inc., a small business of Plymouth, Michigan, protests its exclusion from the competitive range, and the agency’s determination of affirmative responsibility for Ibis Tek, Inc., under solicitation No. W15QKN-18-R-0004 issued by the Department of Army for armor hardware, turret systems, and platform integration kits.  The protester alleges that the agency erred in several respects in evaluating its proposal, and additionally erred in conducting a responsibility determination for Ibis Tek. We dismiss the protest. BACKGROUND The agency issued the solicitation on October 25, 2017, and the protester submitted its proposal on January 19, 2018.  Agency Request to Dismiss at 1.  On September 11, the agency notified the protester that it was excluded from the competitive range.  Id.  On that date, the protester requested a pre-award debriefing.  Agency Request to Dismiss, Tab 1, Email Exchanges at 7.  In response, the agency explained to the protester that different information would be available in a pre-award debriefing than in a post-award debriefing, and clarified that the protester could elect either one, but must choose one or the other.  Id. at 5-7.  The protester then declined a pre-award debriefing and elected to receive a post-award debriefing.  Id. at 4.  The protester learned of the contract award on February 7, 2019, and requested a debriefing, which the agency provided on March 22.  Agency Request to Dismiss, Tab 1, Email Exchanges at 2-3.  The protester filed a protest with our Office on March 27, followed by a more detailed supplemental protest on April 1. DISCUSSION The protester contends that its protest should be considered timely because it learned of the information forming the basis of its protest for the first time in its post-award debriefing on March 22, 2019.  Protester’s Opposition to Agency Request to Dismiss at 1-4.  The protester argues, therefore, that both its protest filed on March 27 and its supplemental protest filed on April 1 were filed within 10 days of when it knew, or should have known, of its basis for protest.  Id. The Competition in Contracting Act, as amended, requires that offerors which 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.  41 U.S.C. § 3705(a).  As set forth in our timeliness rules, a post-award debriefing protest will be considered timely if filed not later than 10 days after the debriefing, even as to issues that should have been known before the debriefing, if that debriefing is “required.”  4 C.F.R. § 21.2(a)(2).  The statute specifically addresses the issue of when agencies are required to give post-award debriefings to offerors excluded from the competitive range, providing that such debriefings are required “only if that [excluded] offeror requested and was refused a pre-award debriefing.”  41 U.S.C. § 3705(c).  In this case, the protester was offered and declined a required pre-award debriefing.[1]  Accordingly, the post-award debriefing received by the protester was not a required debriefing.  Absent a required debriefing, protests, other than those of the terms of a solicitation, must be filed within 10 days of when a protester knew, or should have known the basis for the protest grounds.  4 C.F.R.