In the right circumstances, an agency-level protest can be a quick and efficient way to address certain procurement errors, as we discussed a few years ago. One downside of agency‑level protests, however, is their potential for creating doubt or confusion about the deadline for filing a follow-on protest with the Government Accountability Office (GAO). Under atypical facts, even sophisticated parties can miscalculate the GAO’s deceptively simple filing deadline (10 calendar days after adverse action on one’s agency-level protest).
The recent protest of BDO Public Sector, LLC, B-421777.2, Oct. 3, 2023, is a case in point. The story begins, in medias res, with a corrective action, in which the agency requested revised proposals from BDO (the original awardee) and Deloitte (the original protester). BDO filed an agency-level protest to challenge the corrective action, objecting that Deloitte should be excluded from consideration because it had unmitigable organizational conflicts of interest (OCIs) that rendered its proposal ineligible for award. In the protester’s view, a proper corrective action would result in an award to itself, as it was the only other offeror.
On September 1, 2023, the agency issued a decision on the protest, in which it conceded that its prior OCI inquiry “may not have been sufficient” and stated “[t]o the extent that the protest calls for cancellation of the LIGHTSABER II award, the protest is sustained.” Indeed, the agency stated it would cancel not only the awarded task order, but also the whole procurement, and would resolicit at a later time. Ten days later, BDO filed a protest with the GAO, objecting to the cancellation as “pretextual and an attempt to avoid further review of the underlying OCIs.”
The GAO dismissed the protest as untimely. Although BDO filed its GAO protest within 10 days of receipt of the agency-level protest decision, the agency had given BDO advance notice of what the decision would say, while the formal written decision was still undergoing security review. Specifically, on August 21, 2023, the agency had notified BDO’s counsel: “BDO’s Agency-level protest is sustained in part. The Agency will cancel the solicitation, resolicit its requirement in a manner that suits its best interests, and evaluate offerors for potential OCIs, including as raised in the protest.” Because the protester knew of the intended cancellation on August 21, 2023, any protest of the cancellation was due at the GAO within 10 days of that date—i.e., no later than August 31, 2023. Because BDO did not file its GAO protest until September 1, 2023, the GAO dismissed the protest as untimely. And, because this was a task order procurement, the protester cannot go to the Court of Federal Claims, which lacks jurisdiction over most task or delivery order protests.
Takeaways
- The 10-day deadline for filing a GAO protest following an agency-level protest begins to run from the moment the protester knows or should know the agency has taken adverse action on its protest. Often that moment is the date of a written decision denying the protest. But, as here, it could be earlier.
- Adverse agency action might be in writing (as it was here), or it might be oral. It can even be no words at all, as when an agency proceeds with receipt of proposals without resolving a pending pre-award protest first.
- Be careful about unintended agency-level protests. Companies sometimes try to engage a customer informally, with a written expression of disagreement about some aspect of a procurement and a request for the agency to do something differently. These communications can easily end up being treated as an agency-level protest (even if the communication is not labeled as such), which then can wreak havoc on subsequent attempts to file a timely GAO protest. It is prudent for legal counsel to vet this sort of communication before one sends it to a procuring agency.