#GovConThoughts: Recent GAO Protest Highlights Pre-Award Timeliness Trap
[My #govconthoughts series provides a quick take on recent developments in the government contracting space.]
The Government Accountability Office's ("GAO") recent bid protest decision dismissing a pre-award protest as untimely illustrates one of GAO's timeliness traps that industry must be mindful of when challenging the terms of a solicitation.
The protest of Marathon Medical Corporation, B-422168.2, February 14, 2024, 2024 CPD ¶ ___ involves a protest challenging the solicitation's inclusion of the small business nonmanufacturer rule ("NMR"). But before the GAO could get to the merits of the protester's NMR challenge, the agency requested dismissal on timeliness grounds (i.e., the protest was untimely because it was not filed by December 11).
In that regard, the following dates are relevant: (1) November 14 - Marathon submitted its quote; (2) November 29 - Marathon filed an agency-level protest arguing that the use of the NMR was improper and that it would effectively eliminate small businesses from the competition; (3) November 29 - agency extended the deadline for receipt of quotes; (4) December 1 - new solicitation deadline; (5) January 17 – agency denied the agency-level protest; and (6) January 29 - Marathon filed its GAO protest.
Before getting to the merits, GAO dismissed the protest. GAO agreed with the agency and found that the protest was untimely because it was not filed within 10 days of the quotation deadline (December 11). As GAO explained, its rules provide that protests that follow an agency-level protest "must be filed within 10 calendar days of 'actual or constructive knowledge of initial adverse agency action' to be considered timely." GAO also stated that adverse agency action means any prejudicial action or inaction by the agency, including the “opening of bids or receipt of proposals.”
In other words, where a protester timely files an agency-level pre-award protest but the agency continues to accept proposals, the protester is on notice that the agency is not taking the desired corrective action (i.e., the initial adverse agency action), so the timeliness for a subsequent GAO protest is measured from the proposal or quotation deadline. Under GAO's rules, it therefore did not matter to GAO that the protester filed its protest within 10 days of the agency's written protest decision (denying the protest) because the timeliness shot clock started with the quotation deadline.
Takeaway
A pre-award protest challenging the terms of a solicitation can be a powerful tool for contractors – if successful, the challenge can shape a procurement (to cure ambiguous or conflicting terms, unduly restrictive terms, other regulatory violations). As demonstrated above, where a contractor initially files a timely pre-award agency-level bid protest and the proposal deadline comes to pass, the contractor is on notice of the agency's initial adverse action under GAO's rules. So, if the contractor has any desire to go to GAO, it should not wait for the agency's written protest decision and instead must file at GAO within 10 days of the proposal (quotation) deadline. For more information on this GAO timeliness trap, check out my previous blog post here.
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