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#GovConThoughts: GAO Decision Provides Timely Reminder on When to Challenge Solicitation Terms

Writer's picture: Joshua DuvallJoshua Duvall

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


We bid protest attorneys say it time and time again: if you have an issue with language in a solicitation – e.g., ambiguous, conflicting, unreasonable, or otherwise improper terms – the time to protest is prior to the proposal deadline. Failure to do so will result in dismissal.


In the protest of LCE Newport Beach, Inc., B-42270, July 30, 2024, 2024 CPD ¶ __, the protester filed a protest challenging the award of contracts to Data Link Solutions and L3 Harris under a Navy solicitation. In its protest, the protester argued, among other things, that the "solicitation’s use of gateway criteria was 'unfair and unreasonable,' and that the agency improperly awarded contracts to two non-small businesses." GAO determined this protest was untimely.


Here, GAO found that the solicitation clearly mandated "compliance with initial mandatory gate criteria," and further said that "only those proposals receiving a rating of acceptable would be further evaluated."  An unacceptable rating would therefore render a bid ineligible. In light of the clear solicitation language, GAO concluded that the protester's challenge to the gate criteria as “unfair and unreasonable,” was was required to be filed prior to the due date for receipt of proposals under GAO rules. 4 C.F.R. § 21.2(a)(1). Because it was not timely filed, GAO dismissed the protest.


Takeaway


As the protest shows, if you have an issue with how the solicitation is structured, the time to protest is prior to the proposal deadline. Waiting until after award to challenge a solicitation term will result in swift dismissal. 


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