GAO Protest Provides Cautionary Reminder on Pre-Award Timeliness
Recently, the U.S. Government Accountability Office ("GAO") dismissed a bid protest as untimely where the protester failed to challenge the terms of a solicitation prior to the proposal deadline.
The protest of Rotair Aerospace Corporation, B-419570, March 4, 2021, 2021 CPD ¶ ___ involved a challenge to the terms of a DLA solicitation for failing to include the protester as an approved source of supply for coupling assemblies. Briefly, while the proposal deadline was October 26, the protester waited until December 21 to file its agency-level protest, "arguing that it should have been identified as an approved source of supply." On January 21, the agency dismissed the protest as untimely because the protester "did not submit a protest prior to the closing of the solicitation." On February 4, the protester filed the instant protest at GAO.
After the protest was filed at GAO, the agency filed a request for dismissal, arguing that the protest was untimely. In agreeing with the agency, GAO reiterated the fact that it has "strict rules" governing protest timeliness, which "reflect the dual requirements of giving parties a fair opportunity to present their cases and resolving protests expeditiously without disrupting or delaying the procurement process." To that end, protests "based upon alleged improprieties in a solicitation that are apparent prior to the time set for receipt of initial quotations must be filed prior to the time set for receipt of initial quotations."  Thus, because the protester filed its protest after the proposal deadline, GAO dismissed it as untimely. 
Pre-award bid protests are a great tool for contractors to challenge a number of solicitation issues, including ambiguous, unduly restrictive, and unreasonable solicitation terms. As shown above, however, contractors must remember that this tool in only available where a protest is filed prior to the proposal deadline.
 4 C.F.R. § 21.2(a)(1); Moreover, where a protester initially files an agency-level protest, GAO will consider the protest timely "only if the initial agency protest was filed within the time limits" in GAO's bid protest regulation unless the agency imposes a more stringent filing deadline (which would control). 4 C.F.R. § 21.2(a)(3).
 In a footnote, GAO also provided that:
Moreover, even were we to consider Rotair’s protest with the agency as timely--which we do not--Rotair’s filing with our Office would still be untimely, as it was filed on February 4, 2021, more than 10 days after the agency’s January 21 decision on the agency-level protest. Where a protest first has been filed with a contracting agency, any subsequent protest to our Office, to be considered timely, must be filed within 10 calendar days of “actual or constructive knowledge of initial adverse agency action.” 4 C.F.R. § 21.2(a)(3). The term “adverse agency action” means any action or inaction on the part of a contracting agency that is prejudicial to the position taken in a protest filed there. 4 C.F.R. § 21.0(e).
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