In a decision rendered August 8, 2012, the Government Accountability Office (GAO) considered an untimely protest regarding a solicitation impropriety. The protest concerned a General Services Administration (GSA) request for quotations (RFQ), issued under FAR subpart 8.4, seeking to establish up to six blanket purchase agreements under the Federal Supply Schedule. The RFQ provided that the blanket purchase agreement would be issued on a best value basis considering price and four technical evaluation factors. The RFQ further provided that a technical evaluation board would review and “downsize” quotations to no more than 12 of the most favorably evaluated quotations. The GSA subsequently clarified that the board would not consider price when it downsized the quotations, despite the fact that FAR § 8.405-3(a)(2) requires that price always be considered when determining best value.
Although the RFQ was blatantly flawed, not one of the 35 contractors who submitted quotations in response to the RFQ filed a timely protest. Instead, protester Cyberdata Technologies filed an untimely protest concerning the flawed downsizing methodology after learning that its quotation was one of the 23 quotations excluded from the competition during the downsizing phase.
Citing the “significant issue” exception in its timeliness rules, 4 C.F.R. § 21.2(c), the GAO decided to consider Cyberdata’s protest. The significant issue exception provides that “GAO, for good cause shown, or where it determines that a protest raises issues significant to the procurement system, may consider this an untimely protest.” Although determination of whether a protest raises a “significant” issue under is decided on a case-by-case basis, the GAO explained that it “generally regard[s] a significant issue as one of widespread interest to the procurement community…that has not been previously decided.” The GAO reasoned that the “significant issue” exception was applicable in this case because (1) the GAO had not previously considered the requirement that price be considered before excluding a technically acceptable proposal in the context of establishing a blanket purchase agreement under the Federal Supply Schedule; (2) the requirement to consider price in this situation is expressly required under FAR § 8.405; and (3) federal procurement relies extensively on blanket purchase agreements.
Accordingly, the GAO recommended that the solicitation provide for an evaluation consistent with its obligations under the FAR, request revised quotations and make a new source selection decision. However, because Cyberdata’s protest was untimely, the GAO did not recommend that Cyberdata be reimbursed for its costs of filing and pursuing the protest.
Cyberdata Technologies, Inc., B-406692 (Comp. Gen. Aug. 8, 2012).