GAO Presents a Study in Timeliness Traps

Protests and LitigationIn a decision released on Friday, February 23, 2018, the Government Accountability Office (GAO) provided further demonstration of the bid protest – timeliness traps that may ensnare the wary and unwary alike. In Savannah River Technology & Remediation, LLC; Fluor Westinghouse Liquid Waste Services, LLC, B-415637 et al., Feb. 8, 2018, ___ CPD ¶ ___, the GAO found a number of the protesters’ arguments to be untimely for two separate reasons, both of which serve as important lessons to future protesters.

First, the GAO at least partially resurrected the concept that protest grounds first learned of during discussions can be untimely if not raised until after award. In this case, the GAO noted that the agency had sent identical information to all of the offerors relating to how the agency intended to evaluate past performance and experience where the offeror was a limited liability corporation. In this regard, the GAO provided a long quote from the discussions letter provided to the protester that, according to the GAO, notified the offerors of the manner in which the agency intended to evaluate the offers and provided offerors an opportunity to amend their proposals in light of that advice. As a result of this letter, the GAO concluded that “[t]o the extent [protester] thought this was improper, it was required to protest before the deadline for submitting proposal revisions in the wake of agency’s discussion letter.”  Id. at 6.

This holding is the latest in a series of cases discussing whether a protester must file pre-award a protest based on information learned during discussions. See Boeing Co., B‑311344 et al., June 18, 2008, 2008 CPD ¶ 114 (holding that a protester is not required to file a defensive protest “where the protester is apprised of agency evaluation judgments with which it disagrees or where it believes the evaluation is inconsistent with the solicitation’s evaluation scheme . . . .”). The exception to this rule had been that, where an agency’s discussions or other pre-award communications put the protester on notice of a differing interpretation of a solicitation, the protester was required to raise the decision early. See Carothers Constr. Inc., B-405241.4, July 26, 2012, 2012 CPD ¶ 225 at 6 (finding a protest untimely where “the agency clearly placed the protester on notice during discussions of what information the agency expected the protester to include in its proposal.”). In recent years, however, even this exception seems to have eroded. For example, in Paragon Tech. Grp., Inc., B-412636; B-412636.2, Apr. 22, 2016, 2016 CPD ¶ 113, the GAO rejected the intervenor’s argument that a past-performance protest ground was untimely because the agency had explained during discussions how it intended to evaluate past performance and the protester did not raise the issue, but instead decided to wait until after award. At that time, the GAO concluded that the post-award protest was not untimely because the determination was not a final determination and the offeror “may presume that the agency will act properly.”  Id. at 13 n. 11. The Savannah River Technology case, however, once again raises the question of whether an offeror should file a defensive pre-award protest when notified during discussions of a solicitation interpretation or evaluation methodology with which it disagrees. In this regard, protesters may need to weigh the advantages of having a protest found premature as opposed to untimely, as well as the strength of their argument.

Second, the Savannah River Technology case provides a reminder that the required dates for supplemental protests and for comments will not always align. According to the GAO, the agency in Savannah River Technology provided early document-production to both protesters, i.e., documents from the administrative record were produced prior to the agency actually submitting its Agency Report. As a result, the 10-day protest clock for the supplemental protest grounds learned from those documents began to run when the documents were first produced, not merely from the time of the submission of the Agency Report (which triggers the deadline for the Comments on the Agency Report). Both protesters apparently submitted timely supplemental protests in response to the early document-production. However, the protesters then apparently expanded on these arguments in their Comments by raising new challenges to the agency’s evaluation for the first time. As the GAO explained, a protester may not file a broad initial allegation that is later supplemented with specific examples of the more general challenge unless each of those examples independently satisfies the timeliness requirements. This is an important lesson to take away not only for the purposes of supplemental protest grounds, but in considering the required specificity of an initial protest as well.

Key Timeliness Takeaways

  • Where an agency provides information during discussions concerning how it interprets the solicitation or how it intends to evaluate proposals with which an offeror disagrees, the offeror should consider filing a pre-award protest to resolve the issue. Otherwise, the offeror may be rolling the dice, not only with regard to whether the issue affects the award but also whether the GAO will hear the protest ground.
  • In initial and supplemental protests, protesters should not allege only a broad, general protest ground with the plan of supplementing this allegation with specificity later if the examples that could be used are already known to the protester.
  • In the event that the agency provides early document-production during a protest, protesters should ensure that all new protest grounds (including the new details supporting the protest ground) are filed within 10 days of the document production instead of waiting to submit them as part of the Comments on the Agency Report.