#GovConThoughts: For Pre-Award Solicitation Protests, Watch Out For GAO's Timeliness Trap
[My #govconthoughts series provides a quick take on recent developments in the government contracting space.]
Recently, I had a conversation with a contractor about a pre-award protest the company filed at the Government Accountability Office ("GAO") that was dismissed as untimely. The situation was unfortunate because although GAO has a robust body of regulation and "caselaw" from which to draw upon, which helps to ensure the inexpensive and expeditious resolution of these matters, GAO protests still involve traps for the unwary. One of those traps relates to pre-award timeliness.
By now, most contractors understand the utility of a pre-award challenge to the terms of a solicitation. Whether the terms are unduly restrictive, contrary to statute or regulation, or ambiguous, a successful pre-award protest can change the procurement. Yet, where a contractor fails to timely file its pre-award protest at GAO prior to the proposal deadline, GAO will dismiss it as untimely pursuant to 4 C.F.R. § 21.2(a)(1). Simple enough, but it also begs the question: how is timeliness at GAO calculated where a protester timely files a pre-award agency-level protest first?
In that situation, GAO's rules generally provide that if a timely agency-level protest is filed, a later protest to GAO must be within 10 days of "actual or constructive knowledge of initial adverse agency action." 4 C.F.R. § 21.2(a)(3). The rule goes on to state that for pre-award protests, any subsequent GAO bid protest will be considered timely "if filed within the 10-day period provided by this paragraph, even if filed after bid opening or the closing time for receipt of proposals." While seemingly clear, this rule involves one of GAO's traps for the unwary.
Specifically, another GAO rule defines "adverse agency action" as "any action or inaction" by the procuring agency, including the receipt of proposals. 4 C.F.R. § 21.0(e). Thus, where a protester timely files a pre-award agency-level protest and the agency does not amend the solicitation before the proposal deadline, protesters are on notice of the agency's "initial adverse" action. And, that is the point at which the 10-day shot clock starts (not the agency's protest decision). Scopus Optical Indus., B-238541, Feb. 23, 1990, 90-1 CPD ¶ 221 (stating that once the agency accepts proposals, a protester is on notice that the agency will not amend the solicitation in response to the protest; thus, timeliness is measured from that point rather than the denial of the agency-level protest).
Takeaway
A pre-award protest of a solicitation's terms is a powerful tool for contractors, as a successful challenge can shape the procurement. As demonstrated above, where a contractor initially timely files a pre-award agency-level protest and the proposal deadline comes to pass, protesters are then on notice of the initial adverse agency action. Thus, if there is any desire to have GAO review your protest, contractors should not wait for the agency's protest decision and instead must file at GAO within 10 days of the proposal deadline.
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