October 8, 2015 - Protests & Litigation

Coulson Aviation : The Inadvertent Agency-Level Protest

protests-and-litigation-600GAO’s August 14, 2015 decision, Coulson Aviation (USA), Inc., B-411525 (Comp. Gen. August 14, 2015), presents a cautionary tale for any contractor that submits a letter to the contracting officer contesting some aspect of the solicitation.  Such a letter, even if intended only to conduct an informal dialogue with the agency, may be held to be an agency-level protest under FAR 33.103(d).  As Coulson Aviation illustrates, the distinction between an informal dialogue and an agency-level protest can have a significant impact on the timeliness of any subsequent protest filed at GAO.

On October 21, 2014, the contractor “sent a letter to the contracting officer requesting that the agency amend the solicitation to incorporate the commercial item procedures under FAR part 12.”  After the contracting officer denied the request on November 10, the contractor sent a second letter on November 15 asking that the contracting officer reconsider the request.  This too was denied, and the contracting officer stated that the agency would “not entertain any further correspondence” on the issue.  On December 18, the contractor sent a third letter asking for an in-person meeting to address the issue.  The contracting officer denied this request on December 23, and encouraged the contractor to submit a proposal consistent with the terms of the RFP.  On May 1, 2015, prior to the May 26 due date for proposals, the contractor filed a protest at GAO challenging, in part, the agency’s failure to conduct the procurement in accordance with FAR Part 12’s commercial item procedures.

GAO found that the contractor’s October 21 and November 15 letters were agency-level protests even though the contractor did not identify them as such and only intended to conduct “open and frank discussions” with the contracting officer pursuant to FAR 33.103(b).  GAO explained that, “to be regarded as a protest, a written statement need not state explicitly that it is or is intended to be a protest[.]”  Rather, to qualify as a protest, the written statement must only “convey the intent to protest by a specific expression of dissatisfaction with the agency’s actions and a request for relief.”  Because the contractor’s letters argued that the agency was required to conduct the procurement under FAR Part 12 and requested relief in the form of revising the solicitation, GAO found that the elements of a protest were met.

GAO’s finding that the October 21 and November 15 letters were agency-level protests rendered the contractor’s subsequent May 1 GAO protest untimely, even though it was filed prior to the due date for proposals.  Pursuant to § 21.2(a)(3), the contractor was required to file its GAO protest within ten days of actual or constructive knowledge of the initial adverse agency action.  GAO found that the initial adverse agency action occurred on November 10, when the agency articulated its disagreement with the contractor regarding its request to change the procurement from FAR Part 15 to FAR Part 12.  The agency reaffirmed its rejection of the contractor’s position on December 9 and again on December 23, when it informed the contractor that it would “not entertain any further correspondence regarding the pursuit of a FAR Part 12 acquisition strategy.”  As the contractor’s GAO protest was filed months after the agency’s rejection letters, GAO dismissed the protest as untimely under § 21.3(a)(3) even though it was submitted prior to the due date for proposals.

Key Takeaway

Contractors should be extremely careful when attempting to convince an agency to undertake a particular course of action during a procurement.  What may be intended to be an informal and frank discussion may be found to be an official agency-level protest under FAR 33.103, in which case any subsequent GAO protest addressing the same issue that is not filed within ten days of the agency’s response would likely be dismissed as untimely.

To minimize the risk of an unintended agency-level protest, a contractor that engages the agency should avoid expressing dissatisfaction and requesting specific relief, and instead should frame its opinion as “a suggestion, hope, or expectation.”