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  • Writer's pictureJoshua Duvall

#GovConThoughts: GAO Decision Highlights The Adage That It's Better To Be Premature Than To Be Untimely

[My #govconthoughts series provides a quick take on recent developments in the government contracting space.]


The Government Accountability Office ("GAO") bid protest decision in Ernst & Young, LLP, B-422025, December 29, 2023, 2023 CPD ¶ ___ highlights an important aspect of bid protest litigation that government contracts attorneys often ponder: timeliness. 


Here, the facts are relatively short. The protester submitted a phase 1 quotation and, following evaluation, the agency sent the company an advisory notice stating that it “received a Low Confidence [rating] for Phase 1 and therefore is advised NOT to participate in Phase 2.” The notice was only a recommendation and also stated that "discontinuing the pursuit of the requirement following this notification is voluntary." The protest followed.


In its protest, the protester alleged that the agency's evaluation of its phase 1 submission was unreasonable and contrary to the solicitation terms. The protester also asserted that, based on the agency's phase 1 evaluation and notice, the protester was “effectively eliminate[d]” from the competition.


GAO dismissed the protest as premature. In GAO's view, the protester was not excluded from the competition on the basis that it was merely advised "NOT" to participate in phase 2. Indeed, GAO pointed to the solicitation stating that the protester was still eligible to continue competing for award. Thus, according to GAO, the "record here does not currently present a set of facts that GAO will consider pursuant to our bid protest authority."


Takeaway


This protest is short but provides an important lesson. I suspect that the protester's counsel may have taken the position that it is better to be dismissed as premature (on challenging the phase 1 evaluation), than to be dismissed as untimely at a later date. The critical difference is that the former would enable the protester to re-file its protest regarding phase 1 with GAO at a later date, while the latter would have stopped the protest in its tracks. Finally, and in light of GAO's maze of rules and decisions (timeliness and others), this decision also shows the value in working with protest counsel throughout the procurement.


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