October 28, 2015 - Protests & Litigation

GAO: Protest Filed Within 10 Days of Debrief Still Untimely

Litigation-3GAO’s recent decision in Protect the Force Inc.—Reconsideration, B-411897.3 demonstrates the importance of understanding GAO’s prior case law and carefully following the rules set out in its bid protest regulations. In the September 30, 2015 decision, GAO denied a request for reconsideration by Protect the Force, Inc. (PTF) finding that, though PTF filed within 10 days of a required debrief, its protest was untimely because PTF did not file within 10 days of an alleged solicitation impropriety on which its protest was based.

On July 27, 2015, after the submission of final proposal revisions, the U.S. Army notified offerors it was amending the maximum dollar amount for a line item in the request for proposal (RFP). The Army declined, however, to provide offerors with an opportunity to submit revised proposals in response to this amendment. Two days later, the agency notified PTF that it was eliminated from the competition. PTF timely requested a debriefing, which the agency provided on August 5, 2015. Five days after the debriefing, PTF filed a bid protest at the GAO challenging the agency’s amendment to the RFP. To recap the timeline of PTF’s protest: PTF filed 14 days after the agency amended the RFP, 12 days after PTF was eliminated, and 5 days after it was provided with a required debriefing.

The agency sought dismissal of the protest as untimely, arguing that PTF had not filed the protest within the requisite 10 days of learning of an alleged solicitation impropriety. The agency cited 4 C.F.R. § 21.2(a)(1)[1] of GAO’s bid protest regulations in support of its request. PTF responded that, because it filed within five days of the debriefing, its protest was timely and cited 4 C.F.R. § 21.2(a)(2)[2] in support of its opposition.

On September 4, 2015, GAO sided with the agency and dismissed the company’s protest as untimely because it was not filed within 10 days of the amendment to the RFP that PTF was challenging. In its dismissal, GAO noted that 4 C.F.R. § 21.2(a)(1) does not address the situation at issue in PTF’s case—namely, when an agency fails to provide an opportunity to submit revised proposals after an alleged solicitation defect occurs. It also noted that it has previously held, in Armorworks Enters., LLC, B-400394, that an offeror is obligated to protest an issue concerning the fundamental ground rules of a procurement within 10 days of knowing the reason for protest.

PTF argued, in its request for reconsideration, that GAO erred in finding that the debriefing exception in 4 C.F.R. § 21.2(a)(2) did not apply to its situation. Though PTF acknowledged that normally it would be required to protest within 10 days of learning of a defect in the RFP, it contended that because its debriefing was requested and held within 10 days of the alleged RFP defect, the debriefing exception set out in 4 C.F.R. § 21.2(a)(2) tolled the 10-day filing requirement.

In denying PTF’s request, GAO held that 4 C.F.R. § 21.2(a)(1) of the bid protest regulations did not apply to challenges to the terms of a solicitation, such as PTF’s protest, because such a reading would be inconsistent with (1) the intended meaning of the GAO’s regulation, (2) its prior holding on the same point in Armorworks Enterprises LLC, and (3) principles enunciated by the Federal Circuit that requiring early protests of alleged solicitation improprieties promotes “fundamental fairness in the competitive process by preventing an offeror from taking advantage of an effort to restart the procurement process, potentially armed with increased knowledge of its competitors’ position or information.”  GAO noted that the unusually brief time between the introduction of the alleged impropriety, and the award decision and subsequent debriefing did not alter the nature of PTF’s protest—a challenge to the terms of the solicitation—and therefore did not change the requirement that PTF file within 10 days of learning of the alleged RFP impropriety.

This case serves as a critical reminder that GAO is very strict when it comes to adherence to its regulations and that protestors must file within the proper time periods. To be sure that a protest is timely, contractors are advised to file their protest within 10 days of a relevant amendment to the RFP, even if a debriefing has been requested but not yet provided.

[1] 4 C.F.R. § 21.2(a)(1) states:

Protests based upon alleged improprieties in a solicitation which are apparent prior to bid opening or the time set for receipt of initial proposals shall be filed prior to bid opening or the time set for receipt of initial proposals. In procurements where proposals are requested, alleged improprieties which do not exist in the initial solicitation but which are subsequently incorporated into the solicitation must be protested not later than the next closing time for receipt of proposals following the incorporation.

[2] 4 C.F.R. § 21.2(a)(2) states:

Protests other than those covered by paragraph (a)(1) of this section shall be filed not later than 10 days after the basis of protest is known or should have been known (whichever is earlier), with the exception of protests challenging a procurement conducted on the basis of competitive proposals under which a debriefing is requested and, when requested, is required. In such cases, with respect to any protest basis which is known or should have been known either before or as a result of the debriefing, the initial protest shall not be filed before the debriefing date offered to the protester, but shall be filed not later than 10 days after the date on which the debriefing is held.