The GAO recently dismissed a protest as untimely in a decision that raises procedural caution flags for contractors. If during a procurement, a contractor registers a complaint that can be construed as an agency-level protest (even if it is not labeled a "protest") and receives a negative response, it cannot wait until 10 days after it receives a "required debriefing" to file a protest at GAO concerning that issue. There are separate timeliness rules for protests to GAO after a required debriefing, 4 C.F.R. § 21.2(a)(2), and protests to GAO of adverse action on an agency-level protest. 4 C.F.R. § 21.2(a)(3). The lesson of RTI Technologies, LLC, B-401075, April 15, 2009, is that if you have taken any action that looks like an agency-level protest, you must file at the GAO within 10 days of a negative agency response, and you cannot rely on the separate timeliness rule concerning required debriefings to resurrect the same issue.
In RTI, the Navy notified the contractor on January 20, 2009, that it had been eliminated from the competitive range because the pricing table in its revised proposal did not comply with a table in an amendment to the solicitation. The notification stated that the Navy concluded RTI had taken exception to the solicitation's requirements. The Navy found that the issue could be resolved only through discussions, which it did not intend to conduct. The day after receiving the notice, RTI sent a letter to the contracting officer (CO) requesting that the Navy reconsider its decision and reinstate RTI's proposal in the competition. RTI claimed that the allegedly non-compliant pricing matrix resulted from a "clerical error" that could be addressed through clarifications rather than discussions. RTI did not characterize the letter as a protest. In a response on January 22, 2009, the CO reiterated the Navy's initial conclusions and denied RTI's request for consideration. RTI then requested a debriefing on January 23. The subsequent January 27 debriefing "provided RTI with essentially the same information that the agency provided" in its January 22 letter. RTI filed its protest at GAO on February 3, believing it timely under GAO's rules because it was filed within 10 days of the debriefing.
GAO dismissed the protest as untimely. GAO found that RTI's "reconsideration" letter constituted an agency-level protest—even if RTI did not intend it to be or label it as such—because "it convey[ed] an expression of dissatisfaction and a request for corrective action." The CO's response thus constituted "adverse agency action" under the GAO rules. See 4 C.F.R. § 21.2(a)(3). In such circumstances, GAO rules required RTI to file its protest with GAO within 10 days of receipt of the Navy's adverse response. See 4 C.F.R. § 21.2(a)(3). GAO rejected RTI's argument that its protest was timely under 4 C.F.R. § 21.2(a)(2) because it was filed within 10 days of RTI's required debriefing. That provision provides an exception to the GAO's usual 10-day rule if a protester has requested and obtained a required debriefing. GAO held that this exception did not apply to protests brought following an agency-level protest. In GAO's words, "a debriefing, required or not, does not toll the requirement that a protest be filed within 10 days of adverse action on an agency-level protest."
Perhaps importantly, GAO noted that RTI had not learned any new information at the debriefing and that the basis of its GAO protest was essentially the same as its agency-level protest.
There are several lessons for contractors in the RTI Technologies decision:
- An expression of dissatisfaction to the agency, coupled with a request for relief, could be considered an agency-level protest for purposes of GAO's timeliness rules even if not designated an agency-level protest.
- In that circumstance, the timeliness clock for a GAO protest will run from the initial adverse agency response to that communication, not from any subsequent required debriefing.
- Grounds of protest that first become known at the required debriefing may be timely if filed within 10 days of the debriefing (although to also effect a stay of contract performance, the protester should file within five days of the debriefing).
In sum, disappointed offerors have different potential protest avenues. Any action that looks and smells like an agency-level protest potentially triggers different, possibly more stringent timing requirements for filing at GAO and potentially impacts a protester's ability to affect suspension of contract performance.