#GovConThoughts: GAO Protest Highlights Timeliness Trap for Solicitation Challenges

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

The recent Government Accountability Office ("GAO") decision in RAS Enterprises, LLC, B-423802, September 22, 2025, 2025 CPD ¶ __ is interesting because it provides a timely reminder on one of the tribunal's pre-award timeliness traps. As shown below, contractors should heed this decision to avoid a similar outcome in protests involving solicitation challenges.

This bid protest involves a relatively common scenario. The protester didn't like the solicitation terms, so it filed an agency-level protest. In response, the agency took corrective action and amended the solicitation. The firm was still concerned with the solicitation terms, so it filed another agency-level protest about four hours before the new solicitation deadline. About three weeks later, the agency dismissed that protest, so the firm took its challenge to GAO 10 days later.

Before getting to the merits of the protest, the agency requested dismissal on timeliness grounds. The protester countered that its protest involved unique facts and was therefore timely. GAO sided with the agency and dismissed the protest after declining to depart from longstanding precedent.

Many of you may be wondering why this protest was untimely if it was filed within 10 days of the agency's decision (hint: the answer comes from two rules).

Under GAO's bid protest rules and decisions, where a contractor first timely files an agency-level protest challenging the terms of a solicitation, the 10-day shot clock for filing a subsequent GAO bid protest starts when the agency accepts bids, not when it provides a decision denying the protest. This rule is one of GAO's timeliness traps because it is pieced together from two GAO rules: time for filing (4 C.F.R. § 21.2) and definitions (4 C.F.R. § 21.0).

Specifically, GAO's rules generally provide that where a protester timely files an agency-level protest, "any subsequent protest to GAO must be filed within 10 days of actual or constructive knowledge of initial adverse agency action." While this timeliness rule is seemingly unassuming, "adverse agency action" is a defined term that is located in another GAO regulation. This is what tends to trip up protesters. As defined, that term includes "any action or inaction" by the agency that is prejudicial to your protest, including accepting bids or awarding a contract.

So, while GAO's 10-day shot clock is relatively known in the government contracting space, where agency-level solicitation challenges are concerned, the time for filing a subsequent GAO protest begins not with the agency's protest decision but rather when the proposal deadline comes to pass (i.e., the initial adverse agency action).

Takeaway

A pre-award protest challenging the terms of a solicitation can be a powerful tool for contractors, as a successful protest can shape the procurement (e.g., to cure ambiguous or conflicting terms, unduly restrictive terms, or other regulatory violations). While meeting the solicitation deadline is the well-known cutoff for making such challenges, this decision shows that it also starts the shot clock for filing a GAO protest where a firm previously and timely filed an agency-level protest. Contractors should therefore keep this decision – and timeliness rule – in mind to avoid a similar outcome.

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