HDR farblog
6 minutes reading time (1129 words)
Featured 

Inexperience is no excuse

Protesters will not be excused from abiding by the bid protest regulations of the Government Accountability Office (GAO) because of their inexperience with protests or their lack of understanding of the GAO protest procedures.[1] Thus, the GAO’s bid protest regulations contain some pitfalls for protesters unfamiliar with the rules on responding to the agency report.

GAO will summarily dismiss a protest based on a protester’s failure to make comments, to request a timely extension, or to make the written statement confirmatory of its earlier complaint.[2] In Gilco Construction, Inc.—Reconsideration,[3] the GAO explained the protester’s regulatory duty:

It is the duty of the protester within 10 . . . . days after the protester’s receipt of the report to either submit comments on the report or to advise us to proceed on the written report, i.e., to advise us to proceed even though it will not be submitting comments on the report. The latter requirement is imposed because after receipt of the [agency] report a protester may decide that the agency’s explanation of its position is reasonable, and the protester will decide not to pursue the protest but fails to advise us of that decision. Thus, the protester is required to take one of two actions after it has received the report.[4]

Similarly, if the agency responds in its report to the protester’s allegation, but the protester does not again address the issue in its comments, the GAO will deem the protest ground abandoned.[5] The GAO has held that abandonment will occur when the protester’s comments fail to refer in any specific, direct, and substantive way to the issues originally raised and the agency’s response.[6] The protester’s discussion of new issues or the making of new arguments will not save the protester from a deemed abandonment.[7] Thus, the protester’s attempt to revive an abandoned issue in a later filing will be ineffective.[8]

In IT Corp., Comp. Gen. Dec. B‑258636.2, 95‑1 CPD ¶ 78, the agency responded in detail to the protester’s allegation that the awardee’s proposal deviated from the solicitation. The protester did not challenge the agency’s explanation except to say that the agency’s explanation was “an attempt to further explain the matter away.” Because of the lack of substantive comment by the protester, the GAO deemed the protest ground abandoned.[9]

Notes

[1] Infotec Development, Inc.—Reconsideration, Comp. Gen. Dec. B‑244475.5, 91‑2 CPD ¶ 418.

[2] Unicorn Services, Inc.—Reconsideration, Comp. Gen. Dec. B‑252429.3, 93‑1 CPD ¶ 425.

[3] Comp. Gen. Dec. B‑257735.3, 94‑2 CPD ¶ 241.

[4] See also Thiokol Corp.—Reconsideration, Comp. Gen. Dec. B‑256162.3, 94‑2 CPD ¶ 106, at 2 (noting that “it is not uncommon for a protester to lose interest in a protest upon reading the agency report”).

TMC Global Professional Services—Reconsideration, Comp. Gen. Dec. B‑414937.2, 2017 CPD ¶ 295 (a protestor’s late receipt of an agency report does not alter the period for submitting comments).

Total Control Training, Inc.—Reconsideration, Comp. Gen. Dec.B‑414748.4, 2017 CPD ¶ 261 (upholding dismissal of protest pursuant to 4 C.F.R. § 21.3(i) for failing to timely submit comments in response to the agency’s report).

[5] Coulter Corp., Comp. Gen. Dec. B‑258713, 95‑1 CPD ¶ 70; Kumbo Products Co., Ltd., Comp. Gen. Dec. B‑255661.2, 94‑1 CPD ¶ 213; Datum Timing, Div. of Datum Inc., Comp. Gen. Dec. B‑254493, 93‑2 CPD ¶ 328; ISS Energy Services, Inc., Comp. Gen. Dec. B‑249323.3, 93‑2 CPD ¶ 30; Automatics Research Systems, Inc., Comp. Gen. Dec. B‑240187, 90‑2 CPD ¶ 338; McHugh/Calumet, Joint Venture, Comp. Gen. Dec. B‑276472, 97‑1 CPD ¶ 226 (applying same rule to agency positions in supplemental agency report).

[6] Matthews Associates, Inc., Comp. Gen. Dec. B‑270210, 96‑1 CPD ¶ 103; Dynamic Instruments, Inc., Comp. Gen. Dec. B‑270236, 96‑1 CPD ¶ 105; Energy & Environmental Services Corp., Comp. Gen. Dec. B‑258139.4, 93‑2 CPD ¶ 32; IT Corp., Comp. Gen. Dec. B‑258636.2, 95‑1 CPD ¶ 78. In making comments on the agency report, it will be insufficient that the protester’s substantive response to the agency’s analysis, in its entirety, was that the protester previously addressed the merits of these protest grounds in its initial protest, which the protester incorporated by reference and requested that the GAO issue a decision on the current record. Ross Technologies, Inc., Comp. Gen. Dec. B‑405266.2, 2012 CPD ¶ 9.

Merely referring to or restating a protest basis without substantively responding to an agency’s detailed rebuttal amounts to abandonment of the protest basis. Deloitte & Touche LLP, Comp. Gen. Dec. B‑406563, B‑406563.2, 2012 CPD ¶ 198. Hi‑Tech Bed Systems Corporation, Comp. Gen. Dec. B‑406925, 2012 CPD ¶ 283 (by narrowing its protest to the single issue, the protester necessarily withdrew the remainder of its original protest issues).

Dfuse Technologies, Inc., Comp. Gen. Dec. B‑415716.19, 2019 CPD ¶ 87 (where a protester merely references earlier arguments advanced in an initial protest without providing a substantive response to the agency’s position, GAO will dismiss the allegations as being abandoned). A protest ground will be abandoned where protester did not respond to or rebut the agency’s response regarding misleading discussions and concerns regarding protester’s staffing or test market basket pricing. 22nd Century Techs., Inc., Comp. Gen. Dec B‑412547 et al., 2016 CPD ¶ 93.

[7] Watchdog, Inc., Comp. Gen. Dec. B‑258671, 95‑1 CPD ¶ 69; LHL Realty Co.—Protest & Request for Reconsideration, Comp. Gen. Dec. B‑249073.2, 92‑2 CPD ¶ 363; Warren Pumps, Inc., Comp. Gen. Dec. B‑248145.2, 92‑2 CPD ¶ 187; Southwest Indian Architects, Comp. Gen. Dec. B‑248594, 92‑2 CPD ¶ 181; Birch & Davis Associates, Inc.—Protest & Request for Reconsideration, Comp. Gen. Dec. B‑246120.3, 92‑1 CPD ¶ 372 (good discussion).

Some cases indicate that the protester must positively “rebut” or “refute” the agency’s explanation to avoid a deemed abandonment. See Cornet, Inc., Comp. Gen. Dec. B‑270330, 96‑1 CPD ¶ 189; Akal Security, Inc., Comp. Gen. Dec. B‑261996, 96‑1 CPD ¶ 33. These decisions use imprecise language, because the illogical result is that the GAO will deem the argument abandoned from a procedural standpoint unless the protester prevails on the merits.

Where the agency addresses a protester’s allegations in its report, and the protester does not rebut those allegations in its original comments, but then seeks to rebut the agency response in its supplemental comments, such an attempt to resurrect its abandoned protest grounds will be untimely under 4  C.F.R.§ 21.2(a)(2). NMS Management, Inc., Comp. Gen. Dec. B‑286335, 2000 CPD ¶ 197.

[8] Textron Marine Systems, Comp. Gen. Dec. B‑255580.3, 94‑2 CPD ¶ 63.

See also Southwest Engineering Associates, Comp. Gen. Dec. B‑276465.6, 97‑2 CPD ¶ 31 (protester cannot resubmit untimely comments as new protest or otherwise revise complaint abandoned when protester failed to make timely comment on report).

[9] See also Rome Research Corp., Comp. Gen. Dec. B‑245797.4, 92‑2 CPD ¶ 194 (deeming insufficient protester’s “brief, general statement” that did not rebut agency’s position).

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.

© 2019

Copyright

© 2019

Procuring agency’s corrective action may turn a bi...
Successful bid protests require evidence and expla...

Related Posts

 

Comments

No comments made yet. Be the first to submit a comment
Already Registered? Login Here
Guest
Thursday, 05 December 2019

Captcha Image