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Thursday, September 26th, 2019
GAO Timeliness

A string of recent GAO decisions dismissing untimely bid protests suggests it is a good time to review GAO’s timeliness rules. In general, protests challenging patent improprieties in a solicitation must be filed prior to the deadline for the submission of bids or proposals. 4 C.F.R. 21.2(a)(1). GAO rules do not permit a contractor to ignore an obvious error in the terms of a solicitation and protest after they learn the government has awarded the contract to another company. Protests other than those challenging an apparent solicitation error must be filed no later than ten days after the date on which the contractor knew or should have known of the basis for its protest. 4 C.F.R. 21.2(a)(2). An exception applies to protests or procurements where the protester has timely requested and is legally entitled to a debriefing.[1] There, protests must be filed no later than ten days following the conclusion of the debriefing.

Another consideration is the deadline to receive the Competition in Contracting Act’s automatic stay of contract performance. That deadline runs ten days from the date of contract award or, in the case of a timely requested and required debriefing, five days from the date of the debriefing. For a protest to be timely filed with the GAO following a prior agency-level protest, the original agency-level protest must have been timely filed in accordance with the GAO’s timeliness rules. 4 C.F.R. 21.2(a)(3). In a recent decision, the GAO dismissed as untimely the protest of Best Practices Group because of its earlier untimely protest at the agency-level. There, proposals were due on May 13, 2019. The Department of Veteran Affairs announced its award decision on June 13, 2019. The protester filed its protest with the agency on July 1, 2019, alleging both that the solicitation was defective and that the evaluation of proposals was improper. Both protest grounds were untimely. Because the protest challenged an apparent solicitation defect, it had to be filed on or before May 13 – the date proposals were due. The protest contending improper evaluations had to be filed within ten days of the date the protester knew or should have known of the basis for protest. Here, the Agency determined that date to be the date of award–June 13. Accordingly, the Agency dismissed the protest as untimely. The protester refiled its protest with the GAO on July 15. The protester argued its late filing should be excused because it was not familiar with the GAO’s protest regulations. The GAO rejected the argument and dismissed the protest as untimely.

In Vistronix, LLC, the protester filed an agency-level protest on May 3, 2019, challenging the government’s determination that the protester was ineligible to compete for a task order due to an Organizational Conflict of Interest (“OCI”) arising from a contract held by an affiliate of the protester. The Agency had previously awarded the task order to Vistronix but notified it on April 10, 2019 that it was rescinding the award following its OCI investigation.[2] The Agency dismissed the protest as untimely. Vistronix re-filed with the GAO on May 20, 2019. The Agency moved to dismiss the protest as untimely.

The protester argued that the Agency’s April 10 letter did not clearly inform it that it would not be permitted to participate in the subsequent competition following the termination of its award. The protester alleged an April 24 letter informed it that it had been excluded from further competition. The GAO determined that the April 10 letter clearly informed Vistronix that it had an unmitigable OCI, which not only formed the basis for the contract rescission but would also necessarily exclude it from further competition. GAO determined that Vistronix’s original agency-level protest should have been filed within ten days of the Agency’s April 10 letter. Because the initial agency-level protest was not timely, the GAO protest was likewise not timely and GAO dismissed the protest.

The GAO’s timeliness rules can be both complicated and unforgiving.[3] A contractor that believes it has grounds to protest should retain experienced protest counsel as early as possible.

[1] Generally, the debriefing exception applies to acquisitions conducted under FAR Part 15 and under FAR 16.505 where the value of the order is in excess of $5,500,000.00.

[2] The Agency initiated the OCI investigation in response to a prior GAO protest challenging the award to Vistronix.

[3] Note that a third venue for protests exists: the U.S. Court of Federal Claims. This Article does not address its timeliness rules.

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