The U.S. Government Accountability Office (GAO) recently published four protest decisions that were all denied due to timeliness issues. This string of cases serves as a reminder that no matter how strong a protest’s basis may be, if it is not timely filed with GAO; then the protest will most likely be dismissed. GAO’s regulations set strict deadlines for filing protests at GAO. These rules reflect GAO’s dual requirements of
(1) giving parties a fair opportunity to present their cases
(2) resolving protests expeditiously without unduly disrupting or delaying the procurement process. GAO strictly enforces these requirements and will quickly dismiss a noncompliant protest, so contractors must be aware of these protest timeliness requirements.
Challenges to a Solicitation Must Be Filed Before Deadline for Receipt of Proposals
When a contractor has a protest arising from a disagreement with the solicitation, e.g., the terms of the statement of work, it must file a protest with GAO before the bid opening or the deadline for initial proposals. If the solicitation defect at issue was not evident before that time, then a protest challenging the latent defect must be filled within 10 days after it became apparent. GAO recently published two decisions highlighting this requirement.
First, in WK Engineering International (WKE), the protester challenged the issuance of two purchase orders for pulley wheels to AMI Industries, Inc. issued by the Defense Logistics Agency (DLA). On March 23, 2017, DLA issued an RFQ requesting quotations to supply pulley wheels associated with aircraft ejection seats. The solicitation set the quotation deadline for April 3. DLA issued a second RFQ on June 6, with the deadline of June 16, for an additional 25 pulley wheels, identified by an identical description as in the first RFQ. WKE submitted timely quotes for both solicitations.
DLA determined that WKE’s quotations were offers for alternate products from those specifically required by the RFQs, which would not be evaluated. Subsequently, DLA determined that AMI was the only approved source of supply for the required products, and awarded AMI both the first and second purchase order. WKE filed an agency-level protest challenging award of the first purchase order to AMI, which DLA dismissed as untimely. As a result, WKE filed another protest challenging the award of the first purchase order to AMI, this time filing the protest with GAO. WKE then filed a second GAO protest challenging the second purchase order.
WKE’s protests asserted that DLA abused its discretion in determining that AMI was the only approved source of supply for the pulley wheels. However, GAO concluded that the terms of the solicitation apprised vendors of the source restriction for both purchase orders. GAO considered WKE’s argument that it should have been considered as an approved source of supply as a challenge to the source restrictions explicitly stated in the RFQs. Thus, GAO dismissed both protests as untimely, stating that the protests should have been raised before each deadline for receipt of quotations.
In a similar case, GSE, Inc., the protester challenged the Department of the Army’s actions pursuant to a solicitation seeking proposals to develop and perform engine testing of heavy-fuel systems for unmanned aircrafts. The Army posted the solicitation on February 24, 2017, and established a closing date of April 11, 2017. After the Army notified GSE that its proposal would require more development and thus, be evaluated lower than other proposals, GSE expressed its dissatisfaction and began discussions with the agency. On August 15, the Army offered GSE an in-person debriefing on either August 15 or 24. GSE declined the debriefing offer. Instead, GSE filed a protest at GAO, complaining that the solicitation contained various flaws and the Army improperly evaluated its proposal. GAO deemed GSE’s protest as untimely, because the majority of GSE’s protest assertions, filed months after the deadline for receipt of proposals, centered on challenges to the solicitation. Ultimately, GAO stated that GSE was required to challenge the solicitation prior to submitting its proposal.
All Other Protests Must Be Filed Within 10 Days of Learning of the Basis for Protest
The GAO regulations require that any protest not based on the terms of the solicitation must be filed no later than 10 days after the protestor knew or should have known the basis of their protest. There is an exception for competitive procurements in which the protester requests a debriefing that the agency is required to provide. In those cases, the protester is not permitted to file its protest before the debriefing is held, even if the basis of protest is known before the debriefing. The protestor must wait to file its GAO protest until after the required debriefing, but no later than 10 days after the date of the debriefing.
Please note that the requirements for filing a timely protest at GAO are slightly different than the requirements to trigger an automatic stay of performance under the Competition in Contracting Act (CICA). For the automatic stay of performance to be triggered, the procuring agency must be notified of the GAO protest within 10 days of contract award, or within five days of a required debriefing, whichever is earlier. Because of this slight difference in the deadline, it is possible for a protest to be timely filed with GAO but untimely for the purposes of the automatic stay under CICA. As a result, protesters should be aware of this separate filing requirement.
The 10-day deadline also applies to protests filed at GAO following an agency-level protest. There, the protester must file its GAO protest within 10 days of the initial adverse agency action on its agency-level protest. A protestor receiving oral or written notice that the agency is denying the protest triggers this deadline. In addition, any actions clearly indicating that the agency is denying the protest, e.g. proceeding with bid opening or receipt of proposals, also activates the 10-day deadline to file at GAO.
Two Recent Decisions Enforce 10-Day Bid Protest Deadline
GAO recently issued two protest decisions that highlight the 10-day deadline, and the consequences to a protester that fails to adhere to that deadline. First, in The Povolny Group, the protester challenged the award of a contract to Winspear Construction, LLC under an RFP issued by the Department of Veterans Affairs for the renovation and expansion of the parking structure at the Boise Veterans Affairs (VA) Medical Center. On November 10, 2016, the VA issued the RFP that provided for award to the offeror submitting the lowest-priced, technically acceptable proposal. The agency received two timely proposals from Winspear and Povolny. The VA determined that Winspear offered the lowest priced, technically acceptable proposal, and made award to Winspear on March 16, 2017. Povolny filed a protest with GAO challenging the award to Winspear, and the VA decided to take corrective action in response to the protest.
The VA reevaluated Winspear’s proposal and determined it needed a Certification of Competency from the SBA. On July 13, 2017, the SBA issued the certificate and accordingly, the agency canceled the stop work order that it issued to Winspear following the protest. Importantly, the agency informed Povolny by email on July 17 that the SBA had issued the Certificate of Competency, and the agency planned to proceed with the award to Winspear. On August 7, Povolny filed another protest with GAO challenging the VA’s corrective action and new award decision. GAO determined that the protest was untimely because it was filed more than 10 days from when Povolny received the VA’s email that it was moving forward with the award to Winspear, which is when should have known its ground for protest.
In another recently published decision, Synergy Solutions, Inc., GAO dismissed as untimely the protester’s challenge to the award of a contract by the Department of Energy, National Nuclear Security Administration, for services in support of the Office of Personnel and Facility Clearances at Kirtland Air Force Base. Department of Energy (DoE) received 10 timely proposals, including Synergy’s. The agency ultimately awarded the contract to TUVA on September 30, 2016. Following a debriefing, Synergy filed a protest with GAO challenging the agency’s evaluation of both its and TUVA’s proposal, as well as TUVA’s experience for the award. After receiving a document production from DoE, Synergy filed a supplemental protest again challenging the evaluation of TUVA’s proposal, and alleging that DoE engaged in unequal discussions.
After Synergy’s initial and supplemental protests, DoE elected to take corrective action. DoE performed a reevaluation of all evaluation factors, but once again chose TUVA for the award. Synergy then filed another protest at GAO, again challenging DoE’s award decision. GAO determined that Synergy raised a number of issues in the new protest that were clearly apparent in the record of the earlier procurement but were not raised either in the initial or supplemental protest. Because several of the issues raised were known, or should have been known, to the protestor in the earlier protest, the GAO deemed these issues untimely and therefore, would not be considered. Essentially, the GAO saw no reason to give Synergy a “second bite at the apple” on issues present at their first protest opportunity.
Lessons for Government Contractors Regarding Bid Protest Deadlines
These four recent decisions by GAO provide a good lesson for government contractors: be well aware of the deadlines involved for filing protests and don’t let those deadlines pass you by. Agencies will make mistakes in procurements, some of which could lead to a sustained protest giving a disappointed offeror another chance at being selected for award. But, like in these four cases, options to hold an agency accountable for those errors will be severely limited if the protester fails to file its protest in accordance with the timelines set by GAO.