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Additional supporting arguments for timely protests v. new protest grounds in GAO litigation

Frequently, protesters will seek to supplement their complaints after the initial GAO protest submission. When protesters raise multiple rounds for complaint, the Government Accountability Office (GAO) will be guided by its bid protest regulations on timeliness under 4 C.F.R. § 21.2. These regulations do not contemplate “[t]he piecemeal presentation or development of protest issues.” Curtis Center Ltd. Partnership—Reconsideration, Comp. Gen. Dec. B-257863.3, 95-1 CPD 147.

Generally, the timeliness of specific bases of protest raised after the filing of a timely initial protest depends upon the relationship the later-raised bases have with the initial protest. Prospect Associates, Inc., Comp. Gen. Dec. B-260696, 95-2 CPD 53. Where the later grounds present new and independent grounds for protest, they must independently satisfy the GAO’s timeliness requirements. Curtis Center Ltd. Partnership—Reconsideration, Comp. Gen. Dec. B-257863.3, 95-1 CPD 147; Prospect Associates, Inc., Comp. Gen. Dec. B-260696, 95-2 CPD 53. Conversely, where the later contentions merely provide additional support for earlier, timely raised objections, the GAO will consider these additional arguments. Curtis Center Ltd. Partnership—Reconsideration, Comp. Gen. Dec. B-257863.3, 95-1 CPD 147. Perhaps the key factor in determining this issue will be the extent of a factual and legal nexus between the earlier and subsequent arguments. See Prospect Associates, Inc., Comp. Gen. Dec. B-260696, 95-2 CPD 53. Thus, the GAO will carefully compare the factual and legal distinctions between the earlier and later arguments.

In 841 Associates, L.P., Comp. Gen. Dec. B-257863, 94-2 CPD 193, the protester in a procurement for office space initially argued that the solicitation’s evaluation and award provisions conflicted on whether the award was on a price-alone or a best-value basis and that the agency had erred in failing to resolve the contradiction. In later comments, the protester argued that the evaluation provisions could be harmonized to permit award to the low priced, technically acceptable offeror. The GAO said that this second argument was a new contention as opposed to additional supporting material for the earlier argument. Indeed, the GAO said the second argument contradicted and undermined the first protest argument. Because the protester raised this second argument more than 10 days after having notice of the grounds for the particular complaint, the GAO dismissed the argument under 4 C.F.R. § 21.2(a)(2).

The GAO has enunciated several other principles to assist in distinguishing timely supporting argument for timely protest contentions and untimely new protest grounds.

First, where the protester previously decided not to retain counsel and to obtain access under the protective order to the awardee’s proposal and the agency’s evaluation, GAO precluded the protester from raising new grounds upon such information where the complainant essentially opted not to receive documents when it filed the original protest 2 months earlier. Dominion Aviation, Inc.—Reconsideration, Comp. Gen. Dec. B-275419, 98-1 CPD 62.

Second, even where the new bases for protest are set forth as merely providing examples supporting an earlier general allegation, these examples must independently satisfy the GAO’s timeliness requirements when they involve different factual circumstances and require a separate explanation from the agency. Battelle Memorial Institute, Comp. Gen. Dec. B-259571, 95-2 CPD 284.

Third, a protester may not raise new grounds of protest in its comments to an agency report that could have been raised in the initial protest filed within the time limit of 4 C.F.R. § 21.2(a)(2). Hugo Heyn Co., Comp. Gen. Dec. B-255329, 94-1 CPD 113.

Fourth, the protester’s challenge against an evaluation or award decision does not necessarily mean that such a protest has alleged all possible bases for challenging that evaluation. Bendix Oceanics, Comp. Gen. Dec. B-247225.6, 93-2 CPD 25.

Fifth, the GAO has said that “In cases where we have found that later-raised contentions provide additional support to an initial protest ground and are, thus, timely, the initial protest ground has been narrowly drawn.” Ralph G. Moore & Associates—Reconsideration, Comp. Gen. Dec. B-270686.3, 96-1 CPD 268.

In Ralph G. Moore & Associates—Reconsideration, Comp. Gen. Dec. B-270686.3, 96-1 CPD 268, the protester’s initial complaint argued that the agency had failed to conduct a reasonable cost realism analysis regarding its own offer. More than 10 days after receiving a complete evaluation record, the protester argued that the agency erred in the cost realisms for the awardee. The GAO noted that the original protest ground was so broadly phrased that the agency was only able to respond to the cost realism issue concerning the protester. As a result, the GAO dismissed the new protest ground about the awardee under 4 C.F.R. § 21.2(a)(2).

The ultimate lesson from Ralph G. Moore & Associates—Reconsideration, and like cases, is that the protester under 4 C.F.R. § 21.1(c)(4) must identify its initial protest grounds with a clear statement of the legal and factual contentions. These grounds must be narrowly stated because the original protest will be the starting point on whether the later-asserted grounds are a permissible supporting argument or new protest grounds. See Serv-Air, Inc., Comp. Gen. Dec. B-258243, 96-1 CPD 267. The protester will therefore bear the risk that an unclear or unduly broad original protest will induce the GAO to characterize the information in the subsequent filing as a new ground and to dismiss it as untimely.

Items on this web page are general in nature. They cannot—and should not—replace consultation with a competent legal professional. Nothing on this web page should be considered rendering legal advice.

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Thursday, 05 December 2019

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