This past month, bid protest decisions from both the Government Accountability Office (GAO) and the Court of Federal Claims (COFC) provided important reminders of procedural rules that protesters and intervenors alike must keep in mind if they wish to succeed at either forum. Accordingly, we consider below recent decisions on timeliness, discovery reaching beyond the administrative record, and continuity of SAM.gov registrations.
Infotrend, Inc., B-419956.301, May 11, 2023
In Infotrend, the GAO dismissed a protest as untimely where the protester’s after-hours interaction with an email containing pre-award debriefing information started the clock for filing.
The protester, Infotrend, sought award of a contract under the Department of Health and Human Services, National Institutes of Health (NIH or “the agency”) Chief Information Officer-Solutions and Partners (“CIO-SP4”) contract program.
The CIO-SP4 request for proposals (RFP) here contemplated a three-phase proposal evaluation process. As is relevant to this protest, the first phase required offerors to submit self-scoring sheets documenting relevant experience and capabilities. Only those offerors who received high scores during this first phase would advance to the second phase of evaluation.
Infotrend timely submitted a phase one response to the RFP but was informed by the NIH that it was not among the highest-rated proposals and therefore would not advance to the second phase of competition. On the same day that the agency provided this notice of unsuccessful offer, Infotrend requested a pre-award debriefing. The agency emailed a pre-award debriefing to Infotrend eight days later; the debriefing email was received by the protester’s designated representative on March 28, 2023, at 5:22 p.m., after the company’s regular business hours.
On April 10, 2023, Infotrend filed a protest at the GAO arguing that the agency had failed to reasonably evaluate its proposal in accordance with solicitation terms. Infotrend argued in its protest brief that this filing was timely because, due to its business hours, the debriefing was deemed received on March 29; 10 days following March 29 was Saturday, April 8, and the next day on which the GAO was open was April 10, when Infotrend filed its protest. The GAO pointed out, however, that contrary to this argument, Infotrend had conceded in its initial protest filing that the debriefing was in fact received on March 28.
The GAO sided with the agency, dismissing the protest as untimely, for two key reasons.
First, the GAO found that the protester had failed to address timeliness adequately in its initial protest pleading, where it stated that the pre-award debriefing was received on March 28 and did not advance its argument regarding the receipt of the debriefing email after business hours. The GAO emphasized that it is the responsibility of the protester to provide all information necessary to establish the timeliness of its protest in its initial protest pleading pursuant to 4 C.F.R. § 21.1(c)(6).
Second, the GAO found that, regardless of this insufficient pleading, the debriefing was received on March 28, not March 29, therefore making the April 10 protest filing de facto untimely. The GAO focused on the fact that, despite the debriefing arriving in Infotrend’s CEO’s inbox after business hours, Infotrend’s CEO forwarded the debriefing to other Infotrend employees on that date. While receipt of information outside of normal business hours is generally not considered constructive notice sufficient to start the clock for protest timeliness purposes, the GAO has found that a protester has actual notice of information where, upon receiving information outside of normal business hours, they interact with it in such a way so as to demonstrate receipt. Infotrend argued that its CEO had not actually read the emailed debriefing information, but instead had merely forwarded the email. The GAO found that this failure of the CEO to scroll further down in the email to read the debriefing itself did not counteract the fact that the CEO had notice of the email and the debriefing information contained therein by virtue of opening and forwarding it in the first instance.
This decision serves as yet another reminder that protesters should always err on the side of caution when determining whether the GAO may consider a protest timely. Furthermore, if it is required to justify a protest’s timeliness, an argument containing pertinent facts should be presented up front in the initial protest filing.
TekSynap Corp. v. United States, No. 23-36C, May 8, 2023
In TekSynap Corp., the Court of Federal Claims took the unusual step of allowing limited discovery in a bid protest by granting the motion of the protester, TekSynap, to supplement the administrative record.
TekSynap challenged the award of an enterprise management services contract, alleging initially only that the agency had conducted a flawed price realism analysis. TekSynap added, in its amended complaint, that the awardee had made material misrepresentations in its proposal.
The material misrepresentation challenge concerned a letter of commitment submitted by the awardee wherein it indicated that a certain individual, Mr. Williams, would be available to perform “without reservation” the duties of a program manager position for the contract, without disclosing that Mr. Williams was both the president of the awardee company and another related company and therefore would be unable to fully dedicate his time to serving in the required key role under the contract. Additionally, during the initial protest of the contract award, Mr. Williams had reached out to a different individual, Mr. Roller, to ask him to instead fill in the key personnel role. TekSynap argued that these alleged misrepresentations were material because key personnel was the most important subfactor under the most important technical factor by which proposals were evaluated.
TekSynap then filed a motion to supplement the administrative record and for limited discovery, first seeking to admit relevant declarations by Mr. Roller and another individual who had knowledge of the situation. In response, the awardee sought to admit competing declarations by Mr. Williams and another awardee employee. TekSynap responded with a second motion to supplement the administrative record, wherein it requested permission to depose all of the identified individuals.
The court pointed out that supplementation of the administrative record is typically not permitted in bid protests, unless the court is unable to undertake effective judicial review of an agency’s decision without extra-record evidence. Pointing to the material misrepresentation claim and the requirement that TekSynap prove that Mr. Williams was in fact not committed to serving as key personnel, the court found that the protest could only be effectively considered with additional information. Accordingly, the court agreed to limited discovery by permitting TekSynap to depose the three most relevant individuals identified.
While bid protests are almost always limited to the administrative record, where additional information is necessary to evaluate the underlying issues, parties may be permitted to conduct additional discovery. While an argument that such discovery is necessary would likely need to be strong to succeed, protesters and intervenors alike should remember that this is a tool available to them at the Court of Federal Claims.
Myriddian, LLC v. United States, No. 23-443, May 23, 2023
In Myriddian, the Court of Federal Claims granted a preliminary injunction in a post-award protest where it determined that the protest would likely succeed on the merits because company to whom the relevant contract was awarded was not continuously registered in the System for Award Management (“SAM.gov”) during the period required by the solicitation.
The protester, Myriddian, sought award of an administrative contract with the Department of Health and Human Services, Centers for Medicare & Medicaid Services (CMMS or “the Agency”). The solicitation indicated that offerors would only be eligible for award where they met all of its terms and conditions. The agency ultimately awarded the contract to Cloud Harbor Economics, LLC (“Cloud Harbor”).
Myriddian’s protest sought to enjoin the agency from awarding the contract to Cloud Harbor because Cloud Harbor did not comply with FAR 52.204-7’s mandatory SAM.gov registration requirement, which was incorporated in the solicitation by reference. Myriddian showed Cloud Harbor’s SAM.gov registration had lapsed for a 17-day period between proposal submission and award, in violation of FAR 52.204-7’s requirement that an offeror continue to be registered in SAM.gov from the time it first submits an offer through the time of award.
In determining whether Myriddian was likely to succeed on the merits of its protest, thereby justifying (in part) a preliminary injunction, the court considered first whether compliance with FAR 52.204-7 was mandatory. FAR 52.204-7(b)(1) requires that offerors “shall continue to be registered [in SAM.gov] until time of award” in order to be eligible. The court analyzed the plain language of this requirement to mean that an offeror must have been registered in SAM.gov without interruption from submission of offer through award, and found that, because the clause was incorporated into the solicitation, compliance with that requirement was necessary for an offeror to be eligible for award.
The court determined that the awardee’s 17-day registration lapse constituted a failure to comply with a solicitation requirement, as set forth in FAR 52.204-7. In making this decision, the court pointed out that the agency did not adequately distinguish between the harm arising from a failure of an offeror to be continuously registered in SAM.gov and the harm that arises when an offeror is not registered in SAM.gov either at the time of proposal submission or at the time of award, both of which are fatal to an offeror’s chance of contract award. Finding that Myriddian was prejudiced by this failure of the agency to adhere to solicitation requirements, the court turned to the other requisite preliminary injunction factors and ultimately enjoined performance of the contract until the bid protest is fully resolved.
While companies seeking to do business with the federal government are almost certainly aware that registration in SAM.gov is necessary both at the time that they submit proposals and when they may ultimately receive award, offerors should take care to ensure that their SAM.gov registration does not lapse between those two points in time. As evidenced by this decision, the Court of Federal Claims will interpret solicitation requirements strictly, in line with their clear language, in determining whether grounds for a protest may exist.