Government Contract Attorney Lawyers Bid Protest Claims Disputes Changes REA Terminations Delays: Government Contract Attorneys Lawyers Protests Claims Protests Disputes

DEADLINES

Missing a bid protest deadline may result in a loss of legal rights.

GAO Bid Protest Rule § 21.2 sets forth the deadlines for filing a protest:

(a)(1) Protests based upon alleged improprieties in a solicitation which are apparent prior to bid opening or the time set for receipt of initial proposals shall be filed prior to bid opening or the time set for receipt of initial proposals. In procurements where proposals are requested, alleged improprieties which do not exist in the initial solicitation but which are subsequently incorporated into the solicitation must be protested not later than the next closing time for receipt of proposals following the incorporation.

(2) Protests other than those covered by paragraph (a)(1) of this section shall be filed not later than 10 days after the basis of protest is known or should have been known (whichever is earlier), with the exception of protests challenging a procurement conducted on the basis of competitive proposals under which a debriefing is requested and, when requested, is required. In such cases, with respect to any protest basis which is known or should have been known either before or as a result of the debriefing, the initial protest shall not be filed before the debriefing date offered to the protester, but shall be filed not later than 10 days after the date on which the debriefing is held.

(3) If a timely agency-level protest was previously filed, any subsequent protest to GAO filed within 10 days of actual or constructive knowledge of initial adverse agency action will be considered, provided the agency-level protest was filed in accordance with paragraphs (a)(1) and (a)(2) of this section, unless the agency imposes a more stringent time for filing, in which case the agency’s time for filing will control. In cases where an alleged impropriety in a solicitation is timely protested to an agency, any subsequent protest to GAO 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.

(b) Protests untimely on their face may be dismissed. A protester shall include in its protest all information establishing the timeliness of the protest; a protester will not be permitted to introduce for the first time in a request for reconsideration information necessary to establish that the protest was timely.

(c) GAO, for good cause shown, or where it determines that a protest raises issues significant to the procurement system, may consider an untimely protest.

Deadline for Filing a Pre-Award GAO Bid Protest

If a protest is based on problems with the terms of the solicitation, it must be filed before the bid opening date or the date for receipt of initial proposals in negotiate procurements.  Examples of improprieties apparent before bid opening include:

  • The solicitation unduly restricts competition
  • The solicitation specification favors a particular product
  • The evaluation criteria is unclear

Deadline for Filing a Post-Award GAO Bid Protest

Improprieties apparent after bid opening or receipt of initial proposals must be filed within ten (10) days after the bidder first became aware of "adverse agency action." Examples of "adverse agency action" include:

    • The Government' award did not follow the evaluation criteria
    • The Government wrongly rejected a bid or proposal as nonresponsible
    • The Government improperly cancelled a solicitation
    • The Government failed to conduct meaningful discussions
    • Improper technical evaluations
    • Unsupported trade-off decisions
    • Conflict of interest
    • Unduly restrictive solicitations
    • Improper best value determinations

In United Health Military & Veterans Services, LLC, B-401652.8 (June 14, 2011, 2012), the GAO refused to consider an argument that could have been made in an earlier protest, but was not.  The GAO held that “allowing the protester to argue – after agency corrective action – in a manner flatly contradicted by arguments in the earlier proceeding undermines the overriding goals of our bid protest forum to produce fair and equitable decisions based on consideration of all parties’ arguments on a fully developed record.  Accordingly, such subsequently raised arguments will not be considered by our Office, whether presented in a request for reconsideration, or in a new protest.”

Debriefing Extends Time to File Protest

If your contract was awarded under FAR Part 15, Negotiated Procurement, you are entitled to a debriefing under FAR 15.506. You must ask for a post-award debriefing within three (3) days of the award date. This is an opportunity to understand the Government’s award decision and determine if there you have reasonable grounds to protest.

Protest must be filed within ten (10) days after award, or ten (10) days after debriefing (if required by law), whichever date is latest.  However, Government not required to stay performance unless Agency receives notice of the protest from the GAO within ten (10) days after award, or within five (5) days after the debriefing, whichever date is later.  It is therefore recommended that the protest be filed within five (5) days after the debriefing whenever possible.

Be careful.  Not all procurements require a debriefing.  In Millennium Space Sys., Inc., B-406771, Aug. 17, 2012, 2012 CPD ¶ 237, a debriefing in a procurement conducted as a Broad Agency Announcement pursuant to FAR § 6.102(d)(2) and FAR § 35.016 did not fall within the exception to GAO’s general timeliness rules at 4 C.F.R. § 21.2(a)(2), because such a procurement was not a procurement conducted on the basis of competitive proposals, under which a debriefing was requested and, when requested, was required.

Significant Issue Exception to Timeliness Rule

Where a protest raises an untimely issue that has not been previously decided and is potentially of widespread interest to the procurement system, GAO may consider the issue pursuant to the significant issue exception in its timeliness rules, 4 C.F.R. § 21.2(c) (2012). Cyberdata Techs., Inc., B-406692, Aug. 8, 2012, 2012 CPD ¶ 230 [GAO invoked the significant issue exception and sustained the protest; however, since the protester did not raise the issue in a timely manner--when it clearly could have done so--GAO did not recommend reimbursement of protest costs.]

 

 

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