Home 
Legal Analysis Bid Protests GAO Protest Deadline? That depends ….
Legal Analysis Bid Protests GAO Protest Deadline? That depends ….
GAO Protest Deadline? That depends ….
| Legal Analysis - Bid Protests |
A protest to GAO must meet deadlines that vary according to numerous circumstances. One circumstance is whether there was a previous agency-level protest. If a GAO protest follows an agency level protest, the GAO protest will not be timely if, at a minimum, the agency level protest was not timely.
A disappointed vendor thinking about filing a protest with GAO faces many risks; some obvious, some not. The most obvious risk, known at least to the vendor but not necessarily to the contracting officer, is the business risk of suing your customer for the order and losing the lawsuit. Less obvious but perhaps more fatal is the risk of trying to sue your customer and losing the lawsuit because you didn’t get the protest in on time. As they say in the movies: if you’re gonna pull the trigger, you better not miss.
Of the two types of GAO protests, one has a deadline that is easy to determine, presenting little risk of being late. That protest is one filed during the solicitation process challenging, for example, the technical requirements of a request for proposal (RFP) or request for quotations (RFQ) that the vendor believes has been drafted to favor a competitor. The deadline for those protests is the due date for the government’s receipt of proposals or quotes. There are no “ifs, ands, or buts” for those types of protests.
This simple deadline, however, is not found in the most common type of GAO protest: the protest by an unsuccessful vendor after learning at the end of the solicitation process that it has lost the contract. On the surface, getting this type of protest in on time doesn’t seem all that difficult. An unsuccessful vendor has 10 days to file a protest. But the “10 day rule” is simply the start of the maze because the “10 days” is typically followed by a lot of fine print raising questions of (1) what did the vendor know, when did the vendor know it, and what should the vendor have known; (2) did the vendor get a “required debriefing” under FAR 15.506; (3) does the protest involve quotes or proposals; (4) does the vendor want an automatic stay of contract performance along with that protest; and (5) has the unsuccessful vendor previously filed an agency-level protest, the timeliness of which affects the timeliness of a GAO protest. As a result of all these different circumstances, the best answer to the question “what is the deadline for protests to GAO” is: it depends. At least five different, often subtle, factors come into play in determining the GAO protest deadline. 1. Knew or should have known. GAO regulations require disappointed vendors to file GAO protests no later than 10 days “after the protester knew, or should have known, the basis of the protest, whichever is earlier.” 4 C.F.R. §21.2(a)(2). The “should have known” is a subjective test that often finds protesters and an agency in conflict. 2. Required debriefing. FAR 15.506 reverses the “shoot first, ask questions later” rule by allowing disappointed vendors to ask questions at a required debriefing which then changes, and usually–but not always–extends the 10 day time period for filing a protest. The 10 day period becomes 10 days from the required debriefing. The rationale for the different deadline is the hope that, once vendors learn specifically why they lost and how the government treated them fairly, the vendors will not file a protest. This helpful rule has its own quirks buried in the fine-print. For example, if an unsuccessful offeror knows a reason to protest before getting a required debriefing, it cannot file a protest based on that reason until after the required debriefing. Another quirk is that a required debriefing does not change the 10 day deadline for an agency-level protest. Required debriefings deal only with a GAO protest. 4 C.F.R. 21.2(a)(2). 3. RFP or RFQ? A required debriefing changes the protest deadlines for a post-award protest of a contract awarded through the RFP process. But an award under an RFQ is not entitled to a required debriefing. Of course, if a debriefing discloses new information, the protest clock for new information starts to run from the date of the debriefing. But the five-day clock for getting an automatic stay (see below) does not apply to RFQ. The MIL Corp., B-297508, Jan. 26, 2006; Systems Plus, 68 Fed.Cl. 206 (2005). 4. Automatic stay plus protest. Although an unsuccessful vendor’s ultimate goal is winning the protest, an interim goal, sometimes more important than the protest itself, is the automatic stay of contract performance that accompanies a timely protest. But the deadlines are particularly tricky. A required debriefing sets a protest deadline of 10 days after the debriefing. But to get an automatic stay, the unsuccessful vendor must file the protest generally within five days after the required debriefing. FAR 33.104(c).
5. Was there an agency-level protest first? An unsuccessful vendor has the right to file an agency-level protest before filing a GAO protest. If the unsuccessful vendor does decide to protest to the agency first, any protest to GAO will not be timely if, at a minimum, the agency-level protest itself was not timely. 4 C.F.R. 21.2 (a)(3).
The difficulty these complex deadline rules present to simply getting a GAO protest filed can be seen in two recent GAO decisions, both of which had the added problem of an unsuccessful vendor involving the agency in the protest process. Untimely agency-level protest means untimely GAO protest On November 6, 2008, the government told M2 Global Technology, Ltd. it had been excluded from the competitive range for reasons that included the government’s belief that M2’s proposed engine design was unproven. On November 7, M2 requested a debriefing. At the November 20 debriefing, the vendor received no additional information beyond what it had known earlier. On November 26, it filed an agency-level protest based on issues disclosed in the government’s November 6th letter. The agency threw the protest out on the basis that it had not been filed within 10 days of the Navy’s November 6 letter and no additional information was given to the vendor in the November 20 debriefing. Seven days later, the vendor protested to GAO. GAO threw out the protest out as well, and for the same reason: it was filed too late. GAO timeliness rules don’t penalize vendors for filing a protest first at an agency. But the protest to the agency must, at a minimum, be timely for a subsequent protest to GAO to be timely. Here, the agency level protest was filed too late. The protest deadline for an agency level protest is 10 days from when a vendor knew or should have known the basis for protest. Agency level protest deadlines are not extended simply by the fact that the agency provides a disappointed vendor with a required debriefing. Of course, if the required debriefing discloses a new basis for protest, the 10 day clock starts to run from the debriefing but only for that newly discovered protest argument. Here, M2 learned nothing new from its debriefing, so the 10 day clock on its protest did not start from the debriefing but rather from when M2 first learned of the agency’s doubts about M2’s proposed engine design. As a result, the vendor had filed its agency-level protest too late, making any GAO protest of this same issue too late as well. M2 Global Technology, Inc., B-400946, Jan. 8, 2009. Available at http://www.gao.gov/decisions/bidpro/400946.htm. Timely agency-level protest, untimely GAO protest The M2 case involved a formal agency-level protest of a vendor excluded from the competitive range filing an untimely agency-level protest and therefore an untimely GAO protest. Another disappointed vendor had somewhat the same problem with an untimely GAO protest, perhaps not realizing that its request to the agency to reconsider its decision was in fact deemed to be an agency-level protest which in turn started its GAO protest clock. RTI Technologies was excluded from the competitive range on January 20, 2009 when the Navy explained in a letter why the vendor’s proposal was unacceptable. The next day, RTI sent the contracting officer a letter asking that the government’s decision be reconsidered and that the vendor’s proposal be reinstated. Significantly, the vendor’s January 21 letter argued that it had made a mistake, a clerical error, that could be dealt with through clarifications. The next day, January 22, the contracting officer denied the request for reconsideration, “reiterating [in the words of GAO] the position that the alleged error in RTI’s proposal could not be corrected without reopening discussions.”RTI immediately asked for a debriefing, which the Navy provided on January27. But that debriefing gave RTI essentially the same information it had before. Within 10 days of the debriefing, but 13 days after receiving the government’s denial of reconsideration, RTI filed its GAO protest. RTI argued that the 10 day GAO protest clock started on January 27, the day of the debriefing and not January 22, when the government denied reconsideration because its request for reconsideration was not really an agency-level protest that had to be protested to GAO within 10 days. GAO disagreed, concluding that RTI’s request for reconsideration was in fact an agency-level protest, and therefore its GAO protest was untimely: “even if a letter to the agency does not explicitly state that it was intended to be a protest and even if the letter was not intended to be a formal bid protest, we will nevertheless consider the letter to be a protest, where it conveys an expression of dissatisfaction and request for corrective action. Thus we consider RTI’s January 21 letter requesting reconsideration of the agency’s decision to reject its proposal and corrective action constituted an agency level protest.” RTI Technologies, LLC, B-401075, Apr. 15, 2009.
| < Prev | Next > |
|---|