The March 14, 2016 decision by the US Government Accountability Office (GAO) in VMD Systems Integrators, Inc., B-412729, provides a cautionary tale about GAO’s bid protest timeliness rules. GAO’s decision, while not explicitly relying on the “diligent pursuit” principle, should remind offerors that the decision to protest is one that must be considered in each stage of procurement, and that offerors should diligently pursue their protest remedies at GAO.
FAR 15.505(a) permits offerors eliminated from the competitive range to request – and requires the agency to provide – a debriefing. However, it also allows the offeror to request that this debriefing be delayed until after award. The protester in VMD Systems was eliminated from the competitive range but, consistent with FAR 15.505(a)(2), decided to defer the debriefing until after the award. At its post-award debriefing, the protester learned of what it viewed as defects in the agency’s exclusion of it from the competitive range, specifically unequal treatment in the evaluation of its offer as compared to other offerors. GAO found that those alleged errors could not be raised at GAO because, once the protester declined a required pre-award competitive range debriefing, the time for protesting the competitive range determination expired ten days after the protester was informed that it was eliminated from the competition. In short, GAO found that the protester “effectively chose not to protest its exclusion from the competitive range,” and, therefore, was not an interested party with respect to the award decision.
The protester in VMD Systems argued that its protest remained timely because the errors that it discovered in the post-award debriefing could not have been released in a competitive range debriefing (where the FAR prohibits release of information about the evaluation of other offerors prior to award). However, GAO found that if the protester believed there was an issue with the competitive range determination, it still should have proceeded with its requested pre-award debriefing and challenged the agency’s review of its proposal based on the information provided. As GAO has stated in prior decisions, offerors “may not passively await information providing a basis for protest; rather, a protester has an affirmative obligation to diligently pursue such information.” See e.g., United Int'l Investigative Servs., Inc., B-286327, Oct. 25, 2000, 2000 CPD ¶ 173 at 2-4.
Further, GAO, as it has in other “diligent pursuit” decisions involving competitive range determinations, found that the post-award debriefing obtained by the protester was not a required debriefing and, therefore, did not toll the time to file its protest of the competitive range determination. Rather, GAO noted that, by operation of 41 U.S.C. § 3705(c), when the protester decided not to receive a pre-award competitive range debriefing, the offeror’s debriefing was converted into a permissive, and not a “required” debriefing, leaving the protester to rely on the standard ten day period to file its protest.1 The protester’s decision to forgo a post-competitive range elimination debriefing in favor of a post-award debriefing was thus fatal to the protester’s ability to protest at GAO.
The lesson from VMD Systems is that attention to protest options and GAO’s timeliness rules is required at each stage of the protest. While an offeror can consider building good will with an agency or obtaining lessons learned in the debriefing process, the offeror cannot lose sight of mandatory gates through which it must pass if it wants to keep its GAO protest options open. That should be an ongoing process that, at minimum, considers the offeror’s protest options prior to proposal submission, during the evaluation phase, after a competitive range determination, and post-award. The protester must also remember that it also has an obligation to “diligently pursue” its protest remedies. Where it declines to seek information that could give rise to a protest, it may later be time-barred from filing a protest when that same information is eventually, and lawfully, learned.