Once again, the Government Accountability Office (GAO) has affirmed a fundamental principle for successful bid protesting: Pay attention to and comply with the deadlines required by the process.
Background for this Unsuccessful Bid Protest
The protester responded to a solicitation from the U.S. Army for ballistic combat shirts with torso extremity protection. The protester submitted its final proposal revisions (FPRs). On July 27, 2015, after the FPRs had been submitted, the Army sent offerors an email message indicating the provision about the maximum quantity of shirts was going to be changed to a maximum dollar amount, and would make that change to any resulting contracts. The message requested offerors confirm whether their previous prices were still valid.
The protester confirmed that its price was still valid.
Two days later, on July 29, the Army informed the protester that its proposal had not been selected. The protester requested a debriefing, which the agency provided on August 5, 2015. The protester filed its protest on August 10, 2015. The basis of its protest was that the Army had changed its contract requirements without amending its solicitation and asking for revised proposals.
The Army sought dismissal of the protest as being “untimely filed”—specifically, that it was filed more than 10 days after the protester had learned of the alleged solicitation impropriety. The protester argued against dismissal, indicating that it had “timely filed” the protest 5 days after the debriefing. This debate concerned which of two subsections governed the deadline for filing the protest: 4 C.F.R. § 21.2(a)(1) or § 21.2(a)(2). (I’ll refer to these as subsection 1 and subsection 2.)
Subsection 1 provides that if an impropriety is apparent before a bid opening or the deadline for receipt of initial proposals, the protest must be filed before the bid opening or the deadline for receipt of initial proposals. Subsection 1 further states that if an impropriety doesn’t exist in the initial solicitation but is subsequently incorporated into the solicitation, the protest must be filed no later than the next closing time for receipt of proposals following its incorporation.
Subsection 2 provides that, if the conditions of subsection 1 don’t apply, the protest must be filed within 10 days after the basis of the protest is known or should have been known, whichever is earlier, unless a debriefing is requested and is required. If the debriefing occurs, the protest must be filed no later than 10 days after the debriefing is held. (At least, this is what the subsection appears to provide at first glance.)
But a previous GAO decision holds that when an impropriety becomes apparent after proposals have been submitted and when there is no subsequent opportunity to submit revised proposals, the 10-day deadline applies (even if there is a debriefing). Furthermore, this GAO decision is consistent with a federal court decision: Blue & Gold Fleet, L.P., v. U.S., 492 F.3d 1308 (Fed. Cir. 2007).
The GAO held that since the impropriety became apparent on July 27, the protest should have been filed no later than 10 days later on August 6. That’s why the August 10 filing was untimely.
In reaching this decision, the GAO explained the deadlines of §21.2 are designed to encourage filing protests as early as possible and to prevent so-called “defensive protests” made before losing offerors know the basis for a potential protest. The 10-days-after-debriefing deadline applies when the offeror learns the basis for protest as a result of the debriefing.
Lessons to be Learned
If you are considering a bid protest, you need to involve counsel right away. If for no other reason, it’s challenging for counsel to prepare a bid protest within 10 days under the best of circumstances. Providing as much lead time for that preparation is important to success of your bid protest.
Furthermore, reading government procurement regulations can be very tricky. At first glance, almost everyone would think that if you have a debriefing, you have until 10 days after the debriefing to protest. As a matter of fact, the GAO acknowledges this very fact in its opinion for this case. But decisions by the GAO and federal courts can often significantly change what appears to be clear deduction about a regulation into something else altogether. After all, the U.S. Supreme Court has ruled that, under customs regulations, a tomato is a vegetable, not a fruit—even though botanists classify a tomato as a fruit. Nix v. Hedden, 149 U.S. 304 (1893).
For more information, see Protect the Force, Inc.—Reconsideration, B-411897.3, announced September 30, 2015.