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Oles Morrison

Your GAO Protest Can Be Untimely Even if You Follow the Plain Language of GAO’s Protest Regulations

By on October 6, 2015 | Posted in Bid Protests

2614531003_c34d9a2393_zHave you ever had a contract dispute and looked back at the contract only to realize that you hadn’t contemplated that type of dispute occurring, and the contract is essentially silent on the issue?  It seems that this is the type of situation that GAO recently encountered with its bid protest regulations.  Unfortunately, this hole in the GAO regulations can have negative implications for those seeking to file a protest.

Protect the Force, Inc. – Reconsid., B-411897.3, involved a procurement where, after submission of final proposal revisions, the agency notified offerors it was amending the max dollar amount for a line item in the RFP (Day 0).  However, offerors were not provided an opportunity to submit revised proposals in response to this amendment, and two days later the agency notified Protect the Force (“PTF”) that it was eliminated from the competition (Day 2).  PTF timely requested a debriefing (Day 4), which the agency provided (Day 11).  Thereafter, PTF filed a bid protest at GAO (Day 16) challenging the agency’s amendment to the RFP.  To recap the timelines, PTF filed its protest 16 days after the amendment, 14 days after it was eliminated, and 5 days after it was provided a required debriefing.

A plain reading of GAO’s protest regulations would seem to support PTF’s argument that its protest was timely, as it was filed within 10 days after the required debriefing.  But GAO held otherwise, dismissing PTF’s protest as untimely, because it was not filed within 10 days of the amendment to the RFP being challenged by PTF.

Why the Plain Language of GAO’s Protest Regulations Support PTF’s Protest Being Timely 

Subsection 21.2(a)(1) of GAO’s bid protest regulations concerns protests based upon alleged improprieties in an RFP or an amendment to the RFP (except those preceded by an agency-level protest as discussed in an earlier post).  This subsection requires such protests be filed prior to the due date for initial proposals, or the next due date for revised proposals if the impropriety arose after submission of initial proposals.  But, it fails to contemplate a scenario where the agency amends the RFP, in an allegedly improper manner, but then fails to provide offerors with an opportunity to submit revised proposals.  Because Subsection 21.2(a)(1) does not provide a protest deadline in such a scenario, it can’t apply to PTF’s protest.  Subsection 21.2(a)(2) states that, except for protests covered by (a)(1), the deadline for a filing a protest is 10 days from the date the protestor knew or should have known of the basis for its protest.  However, where a debriefing is requested, and when requested required, the deadline for filing a protest is extended to 10 days from the date of the debriefing – and that no protest may be filed prior to the debriefing.

In the present case, PTF timely requested a debriefing, which the agency was required to provide.  As a result, the plain language of  Subsection 21.2(a)(2) appears to indicate that PTF’s protest was timely filed within 10 days of the debriefing.  GAO even acknowledged in its decision that its “bid protest regulations might be read to permit timely filing of an issue involving an alleged solicitation impropriety until up to 10 days after a required debriefing.”

Why GAO Dismissed PTF’s Protest as Untimely

Despite the plain language of Subsection 21.2(a), GAO held that PTF’s protest was untimely.  According to GAO, PTF had 10 days from the amendment to the RFP it was challenging to file its protest, GAO held that the debriefing timeliness rule did not apply to challenges to the terms of a solicitation (such as PTF’s protest) because such a reading of the rule would be “inconsistent with the intended meaning of our regulation,” inconsistent with GAO’s prior decision on this same point in Armorworks Enterprises, LLC, B-400394, and inconsistent with the principles enunciated by the Federal Circuit recognizing that requiring early protests of alleged solicitation improprieties would “promote fundamental fairness in the competitive process by preventing an offeror from taking advantage of an effort to restart the procurement process, potentially armed with increased knowledge of its competitors’ position or information.”  Following the Armorworks decision, GAO concluded that the debriefing exception to the timeliness rule should not apply to PTF’s challenge to an impropriety in the solicitation, because the rule governing solicitation challenges encourage filing a protest as early as possible, while the debriefing exception allows a delay in filing a protest until offerors have additional facts about the agency’s actions.

Was GAO Correct?

  • YES: According to GAO’s decision, PTF never argued that the Armorworks was wrongly decided, only that the present case was distinguishable from Armorworks.  While the record disclosed in GAO’s Protect the Force, Inc. – Reconsid. decision is limited, it appears from the decision that if the rule set forth in Armorworks is correct, then the Armorworks rule applied to PTF, making PTF’s protest untimely.  Therefore, if PTF never argued that Armorworks was wrong to begin with, then GAO correctly followed its own precedent on the application of Subsection 21.2(a) and dismissed PTF’s protest.
  • NO: First, the language in Subsection 21.2(a) appears to be unambiguous.  As a result, the fact that the drafters of that rule may not have intended the debriefing exception to apply to PTF, does not change the fact that the plain language of the regulation makes the debriefing exception applicable.  Second, GAO’s interpretation is not only inconsistent with the plain language of the regulation, it also would seem to create conflicting interpretations of its own protest regulations.  Why? Because GAO’s protest regulations (Subsection 21.2(a)(2)) specifically require a protester in PTF’s shoes to wait until after the debriefing to file a protest:

Protests other than those covered by paragraph (a)(1) of this section … [where] a debriefing is requested and, when requested, is required …. 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.

It is quite possible that had PTF filed a protest on Day 10, its protest would have been dismissed because a debriefing had been requested but not yet provided.  In fact, GAO has dismissed numerous protests because they were filed prematurely before a requested/required debriefing had been conducted:

GAO will not consider a protest challenging a procurement conducted on the basis of competitive proposals under which a debriefing is requested and required if filed before the debriefing date offered to the protester (even if the protest basis was known before the debriefing); the protest instead should be filed not later than 10 days after the date on which the debriefing is held.  

In terms of our process, where, as here, an offeror has been eliminated from consideration … and a debriefing has been properly requested (i.e., timely and in writing), a protest filed before the debriefing (even if the protest basis was known before the debriefing) will be dismissed as premature, and should be filed not later than 10 days after the date on which the debriefing is held.

Therefore, it seems that GAO’s precedent in Armorworks (requiring the protest to be filed within 10 days of notice of the basis, regardless of whether a debriefing is requested), conflicts with GAO precedent from other cases applying the same GAO’s protest regulations (where protests were dismissed as premature because a debriefing had been requested but not yet provided, even though the protestor was aware of the basis for its protest prior to the debriefing).

What Protestors Should Take Away from this Case

This case shows the importance of not only reading the applicable GAO protest regulations, but also being familiar with the GAO case law interpreting these regulations, as sometimes GAO’s interpretations are inconsistent with the plain language of its regulations.  It also reflects (yet again) that GAO has no mercy when it comes to compliance with its rules and precedents concerning timeliness of a protest.  Even here, where PTF’s timeliness argument was based upon a reasonable reading of GAO’s protest regulations, GAO still applied its past decisions to dismiss PTF’s protest as untimely.

If faced with the very same situation as PTF , a contractor would be better advised to file its protest within 10 days of the amendment to the RFP, even if a debriefing has been requested but not yet provided.  While the contractor’s protest may be dismissed as premature (because it was filed before the debriefing), the contractor would be able to argue that under  Armorworks its protest is mature, even though it was filed before the debriefing.  Furthermore, even if the protest is dismissed as premature, such a dismissal would be “without prejudice” – in other words the contractor would be allowed to re-file the protest within 10 days after the debriefing is actually provided.  Until GAO amends its protest regulations to fix this hole, this approach (better safe than sorry) is advisable.  Even though it conflicts with the plain language of GAO’s protest regulations, it ensures that the protester will have its day in court at some point.

Image Courtesy of Flickr (licensed) by litherland