If You’re Not Early, You’re Late: Meeting Deadlines in Federal Procurements

LitigationBusinesses hoping to win a government contract must be familiar and comply with a host of complex timeliness rules, from the deadlines for submitting proposals and revisions, to the rules for protesting a potentially improper award to a competitor. One small slip-up may be the difference between receiving a contract and not receiving it.

Untimeliness is a theme that frequently appears in the Government Accountability Office (GAO) protests we highlight on this blog: late proposals, tardy requests for a debriefing, untimely protests. Some deadlines are obvious: If the solicitation says proposals are due at 5:00 p.m., don’t submit your proposal at 5:30 p.m. Others are less intuitive: When is the last possible moment you can request a required debriefing?  A few are positively convoluted.

We provide a few practical tips on timeliness below, illustrated with some cautionary protest decisions. As always, if you are not absolutely sure about any deadline, ask your procurement attorney.

Submitting a Timely Proposal

Each solicitation for a government contract includes a deadline for submitting proposals or bids. If the agency establishes a competitive range and opens discussions, the contracting officer also will set a common date for submission of final proposal revisions. As a general rule, if you miss one of these deadlines—even by a fraction of a minute—your proposal is unacceptable. This is colloquially known as the “Late Is Late” rule. There is a line of decisions at the GAO allowing (but not requiring) the government to extend a deadline retroactively in the interest of greater competition, as long as it is extended for all offerors, but there is no guarantee that an agency will use that authority in any given procurement. There also is at least one Court of Federal Claims decision rejecting this practice as contrary to regulation.

Here are a few practical tips, with some exemplary cases chosen from the plethora of GAO decisions addressing late proposals.

Allow time for technical difficulties and unexpected delays. As electronic submission of proposals has become the norm, an increasing number of protest decisions involve computer problems. Submit your proposal early and verify receipt.

  • Western Star Hospital Authority, Inc., B-414216.2, May 18, 2017, 2017 CPD ¶ 152 (agency reasonably rejected proposal where the designated agency email account did not receive the proposal by the deadline, even though offeror electronically sent it before the deadline and evidence suggested that problems in government servers delayed the transmission)
  • Airrus Mgmt. Sys., LLC, B-416358, Aug. 9, 2018, 2018 CPD ¶ 275 (agency reasonably rejected proposal where agency servers bounced the protester’s first attempts to submit its proposal by email for exceeding the system’s allowable attachment size, and where the final attempt did not reach the designated email address until six minutes after the proposal submission deadline had passed)
  • ALJUCAR, LLC, B-401148, June 8, 2009, 2009 CPD ¶ 124 (agency reasonably rejected proposal where protester arrived at agency facility only eight minutes before the deadline, encountered delays at the security checkpoint, and delivered the proposal to the designated room 29 minutes late)

Check the time zone. If the solicitation sets a deadline of 2:00 p.m. Eastern Time, it doesn’t matter what time it is in your time zone.

Submit the whole proposal on time. It’s not good enough if the agency receives only part of your proposal on time.

Make sure you have the correct destination. It won’t matter what time you submitted the proposal if you send it to the wrong destination.

Submitting a Timely Debriefing Request

As we’ve said before, debriefings are valuable opportunities for an offeror (whether successful or unsuccessful) to learn more about the evaluation of its proposal, the rationale for the award decision, and ways for improving proposals in the future. If a disappointed offeror is inclined to protest, the information that an agency provides (or withholds) in a debriefing is often crucial to deciding whether to protest or not.

Agencies are not required to provide debriefings in all procurements. And, even when a debriefing otherwise would be required, an agency is not required to provide one if the offeror does not request one, in writing, within three calendar days after receiving written notice of exclusion from the competition or notice of contract award. FAR 15.505(a)(1); FAR 15.506(a)(1). If the third calendar day falls on a weekend or other day that is not a regular workday for the agency, the deadline rolls forward to the next workday. FAR 15.501, 33.101.

Ensure that your written request for a debriefing is received no later than 4:30 p.m. on the third calendar day. As we’ve highlighted, the GAO has recently clarified that, unless another time is specified, the precise deadline for requesting a debriefing is 4:30 p.m. on the third calendar day. Exceptional Software Strategies, Inc., B-416232, July 12, 2018, 2018 CPD ¶ 237 (holding that a debriefing request submitted at 4:59 p.m. was deemed filed the following business day).

If you miss this deadline, the agency may still provide a debriefing, but the GAO will not consider it a “required” debriefing. As we will see below, this nuance is important if a protest follows because the GAO’s “debriefing exception” to its normal 10-day filing deadline for timeliness and a stay of contract performance applies only to “required” debriefings.

Submitting a Timely Protest

The GAO is notoriously strict about the timeliness of protests. Because the GAO has multiple timeliness rules, with exceptions, and exceptions to the exceptions, it is very easy to miss a deadline. We have addressed the GAO rules before, but we’ll recap them here.

  • Challenges to the terms of a solicitation. If you object to the terms of a solicitation, ordinarily you must file your protest before the time set for receipt of initial proposals. 4 C.F.R. § 21.2(a)(1). If the objectionable term was introduced by an amendment, you must file your protest before the time set for the next receipt of proposal revisions. Id. And, if a previously latent solicitation defect becomes apparent only after final proposals have been received, you must protest within 10 days of when you knew or should have known of the basis of protest. Id. (The Federal Circuit and Court of Federal Claims similarly require solicitation challenges to be raised “prior to the close of the bidding process.” Blue & Gold Fleet, L.P. v. United States, 492 F.3d 1308, 1313 (Fed. Cir. 2007).)
  • Other protest grounds. All other protest grounds generally must be filed within 10 days of when you knew or should have known of the basis of protest. 4 C.F.R. § 21.2(a)(2). The Court of Federal Claims has no firm deadline for filing protests on these grounds, although it may bar a prejudicially tardy protest under the equitable principle of laches.
  • Debriefing exception. For protests other than challenges to the terms of a solicitation, if the protester timely requests a required debriefing, a protest ordinarily is timely if it is filed within 10 days after the close of the required debriefing (even if it first knew of the protest ground earlier).
  • GAO protests following an agency-level protest. If an agency-level protest has been filed, any subsequent GAO protest of the same issue must be filed no later than 10 days after the agency takes adverse action on the agency-level protest. 4 C.F.R. § 21.2(a)(3). This rule trumps all of the above timeliness rules, regardless of the nature of the protest ground and regardless of whether there has been a required debriefing. It does not, however, affect protests before the Court of Federal Claims.
  • CICA stays. The above rules govern whether the GAO will review your protest ground. There is an independent timeline for triggering the Competition in Contracting Act’s (CICA) stay of contract award or performance. CICA’s stay of award is triggered if a GAO or agency-level protest is filed before the contract is awarded. CICA’s stay of performance is triggered if a GAO or agency-level protest is filed within 10 days after contract award, or within five days after the close of a required debriefing, whichever is later. This rule does not apply to Court of Federal Claims protests, as there are no automatic stays in that forum.

The interplay of these rules can be very confusing, and the GAO frequently finds that protesters have waived potentially meritorious arguments by failing to protest on time. The following tips will help you avoid tripping over the most common timeliness stumbling blocks. These tips are not comprehensive, though, so seek legal advice as soon as you have any protest-related concerns to avoid inadvertently missing a deadline.

If you disagree with or don’t understand a solicitation provision, protest before submitting a proposal. The GAO frequently dismisses post-award protest arguments that take issue with the terms of a solicitation. Unless a solicitation ambiguity or defect was so subtle that a reasonable offeror should not have recognized the problem earlier (i.e., a “latent ambiguity”), it’s too late to complain about it after you’ve submitted your proposal.

Don’t save arguments for later. If you know or should know of a ground of protest, or have additional substantive arguments or factual support for a protest ground that has been raised, those must be raised within the time limits set forth above. The GAO requires that each protest ground independently meet the ordinary deadlines and does not allow “piecemeal development” of protest arguments.

The deadline for filing comments on the agency report is not always the deadline for filing supplemental protests. Ordinarily, the GAO has protesters (and intervenors) file comments on the agency report 10 days after receipt of the agency report. As a coincidence, the 10-day rule for filing supplemental protests ordinarily falls on the same day, which means supplemental protests are usually filed in the same document as the protester’s comments. But that coincidence may not occur if the GAO extends the due date for comments or if the agency provides the record documents before providing the agency report. In such cases, the supplemental protest is due no later than 10 days after the protester first knew of the supplemental ground, regardless of when comments are due.

Don’t wait until the last minute to file. As with proposal submissions and debriefing requests, don’t wait until what you think is the last possible moment to file your protest. And, in case you’re wondering, the “last possible moment” at the GAO is 5:30 p.m. and 59 seconds on the deadline day.

Don’t rely on the debriefing exception if the debriefing was not “required.”  Your protest clock does not necessarily begin to tick at the close of your debriefing. In some procurements, debriefings are never required, even if the agency voluntarily provides them. Nor is a debriefing “required” if it was not timely requested. If the debriefing was not required, a post-award protest ordinarily must be filed within 10 days of when the basis of protest was known or should have been known for timeliness purposes, and within 10 days of contract award for CICA stay purposes.

Offerors cannot unilaterally extend a debriefing. Ordinarily, a debriefing closes when the agency says it’s closed, even though FAR 15.506(d)(6) requires all agencies (both civilian and defense), as part of a required debriefing, to provide “[r]easonable responses to relevant questions about whether source selection procedures contained in the solicitation, applicable regulations, and other applicable authorities were followed.”  By statute, a required Department of Defense debriefing now remains open until the agency responds to questions an offeror submits within two business days of the debriefing, and the Department of Defense correctly has an official policy of implementing the statutory change immediately. An agency may, but is not required to, hold the debriefing open for subsequent rounds of questions.

Beware the effect of an agency-level protest on your protest deadlines. Agency-level protests sometimes can provide a quick, quiet, and inexpensive method for resolving procurement disputes. But they also alter the ordinary GAO protest deadlines—eliminating the debriefing exception for the grounds protested to the agency, and establishing a new 10-day clock that begins to tick once the agency takes “adverse action” action on the protest (whether in writing, orally, or by action). Often that extends the deadline for a GAO protest, but occasionally it shortens it. And the CICA stay deadlines for any subsequent GAO protest are not tolled by the pendency of an agency-level protest.

Conclusion

Other timeliness traps, in addition to the ones highlighted above, lie hidden in the weeds of federal procurement law. But these practical tips and the cautionary GAO decisions illustrating them will help you avoid the most common mistakes that cause offerors to miss important deadlines.