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April 01, 2016 - Protests & Litigation

GAO’s Timeliness Rules: A Hobson’s Choice for Government Contractors

August 2017 Protest Roundup

GAO’s timeliness rules are notoriously rigid. Any protest not based on solicitation improprieties must be filed within 10 days after the basis of the protest is known or should have been known, or within 10 days after a requested and required debriefing.  4 C.F.R. § 21.2(2).  But what happens when the only opportunity to protest occurs at a time when the protester is prohibited from receiving the very information it needs to meaningfully challenge the agency’s source selection decision?  In VMD Systems Integrators, Inc., B-412729, 2016 WL 1085374 (Comp. Gen. Mar. 14, 2016), GAO answered that question with its characteristic strict interpretation of timeliness requirements.

In VMD Systems Integrators, Inc., the National Aeronautics and Space Administration (NASA) contemplated the award of an indefinite delivery, indefinite quantity contract, set aside for small businesses, for information technology, information management, communications, and multimedia services.  Award was to be made on a best value basis according to three evaluation factors: (1) mission suitability; (2) past performance; and (3) cost/price.

VMD’s proposal was one of several submitted in response to NASA’s solicitation.  NASA’s initial evaluation of VMD’s proposal revealed a number of significant weaknesses under the mission suitability factor.  Accordingly, NASA notified VMD that its proposal had not been included in the competitive range, and that requests for debriefings would be provided in accordance with FAR 15.505 for preaward debriefings and FAR 15.506 for postaward debriefings.  In response to this notification, VMD did not request a preaward debriefing, but informed NASA that it was electing to receive a postaward debriefing “in order to learn as much as possible from the debriefing process so that it might better improve its performance in future procurements.”

Subsequently, NASA made award to MORI Associates, Inc. and provided VMD with its requested debriefing, which included debriefing slides, the Source Selection Decision Document (SSDD), and the Source Evaluation Board’s findings with regard to VMD’s proposal.  The SSDD informed VMD of the strengths identified under the mission suitability factor in each of the proposals that were included in the competitive range.

Based on the debriefing, and, in particular, the SSDD, VMD filed a post-award protest at GAO challenging its exclusion from the competitive range based on unequal treatment.  Specifically, VMD alleged that NASA held VMD’s proposal to a higher standard under the mission suitability factor by assigning strengths to other proposals despite VMD proposing the same or substantially similar performance.  Additionally, VMD alleged unequal treatment with respect to the past performance factor based on NASA providing identical ratings to VMD and another offeror despite VMD identifying unique and advantageous past performance.  Following the protest, NASA filed a request to dismiss VMD’s protest for untimeliness.

GAO granted NASA’s request for dismissal, finding that VMD had failed to protest its exclusion from the competitive range within the 10 days required by GAO’s bid protest regulations.[1]  In dismissing the protest, GAO rejected VMD’s argument that even if it had filed a protest following its exclusion from the competitive range, it would not have received information regarding unequal treatment because FAR 15.505(f)[2] expressly prohibits the agency from disclosing information about the evaluation of other offerors’ proposals in a pre-award debriefing.  In other words, VMD argued that because it would not have received the SSDD in a preaward debriefing, it could not have raised its unequal treatment allegations.  GAO stated, however, that VMD’s argument reflected a misunderstanding of GAO’s timeliness rules, emphasizing that VMD’s only option was to request a preaward debriefing after its exclusion from the competitive range and evaluate whether that exclusion was unreasonable based on the information provided at the time.  GAO found that by electing to wait for a postaward debriefing, VMD had forfeited its interested party status and, thus, “effectively chose not to protest its exclusion from the competitive range.”

GAO’s decision in VMD Systems Integrators, Inc. is an important reminder to government contractors of GAO’s unflinchingly strict timeliness rules, and the separate and distinct nature of preaward and award decisions.  GAO’s decision emphasizes that government contractors excluded from a competition preaward face a Hobson’s choice of either protesting then and there, or not at all.  GAO will not allow contractors to make preaward protest arguments based on information available only postaward.  VMD Systems Integrators, Inc., thus, demonstrates that government contractors passing up on a preaward debriefing and protest do so at the peril of their protest rights.

 [1] The Competition in Contracting Act of 1984 provides that a post-award debriefing is only considered a “required” debriefing for an offer excluded from a competitive range where the offeror requested and was denied a preaward debriefing.  41 U.S.C. § 3705(c); FAR 15.505(a)(2).  Accordingly, VMD’s protest could not be considered timely based on a filing within 10 days of its requested postaward debriefing.

[2] FAR 15.505(f) expressly prohibits agencies from disclosing during a preaward debriefing: (1) the number of offerors; (2) the identity of the offerors; (3) the content of other offerors’ proposals; (4) the ranking of other offerors; (5) the evaluation of other offerors; or (6) any of the information prohibited in FAR 15.506(e), which includes trade secrets, privileged or confidential manufacturing processes or techniques, commercial and financial information that is privileged or confidential, and the names of individuals providing reference information about an offeror’s past performance.