Bid Protest Weekly Newsletter by Bryan R. King, Attorney, General Counsel PC
Date: Wednesday, November 21, 2013, 6:32pm EST
DAI, Inc., B-408625, B-408625.2, November 6, 2013
A few weeks ago, we discussed the deadline for filing a bid protest with GAO challenging the terms of a solicitation. That case demonstrated that GAO’s bid protest regulations require challenges to a solicitation’s terms to be filed prior to the deadline for receipt of proposals. However, how is this deadline affected by a protester filing an agency-level protest before going to GAO? This question was answered in a decision recently released by GAO.
Contractors wishing to challenge the terms of a solicitation have three options for filing a protest: the GAO (which is most common), the U.S. Court of Federal Claims, and the procuring agency. Filing an agency-level protest can be an easy way to bring up an issue with a solicitation to the agency, and in some cases may lead to a quick solicitation amendment satisfactory to both the agency and the protester.
If the agency-level protest does not result in a resolution acceptable to the protester, it still has the ability to bring its protest to the GAO or the Court of Federal Claims. However, this post-agency-level protest must still meet the applicable filing deadlines. To file a post-agency-level protest with GAO, the protest must be filed no later than 10 days after the protester had actual or constructive knowledge of initial adverse agency action.
The clear question then becomes: what qualifies as initial adverse agency action? This question was addressed by GAO in DAI, Inc., which involved a solicitation for commercial items issued by the Department of the Army, Army Materiel Command. The deadline for receipt of proposals was set for July 9, 2013, but DAI filed a protest with the agency two days prior to the deadline in which it challenged the terms of the solicitation. DAI argued that the solicitation was erroneously classified as a commercial item buy, and requested that the agency either cancel or amend the solicitation.
The agency continued with the procurement as originally scheduled, considering only those offerors that submitted proposals prior to the deadline of July 9, 2013. On July 22, the agency informed DAI that it was still in the process of preparing a response to the agency-level protest. Apparently DAI considered this to be the initial adverse agency action, as it then filed a protest with GAO challenging the same terms of the solicitation on July 31, 2013. GAO determined DAI’s protest to be untimely filed, and dismissed the protest.
GAO stated that the term “adverse agency action” includes any action or inaction by an agency that is prejudicial to the protester’s position. The timeliness of a post-agency protest is measured from the very first adverse agency action, which does not necessarily have to be a decision from the agency denying the agency-level protest. In this case, the initial adverse agency action that was prejudicial to DAI’s position was the agency continuing with the deadline for receipt of proposals set in the solicitation. Once the agency moved forward with the receipt of proposals, it became obvious that it was not going to cancel or amend the solicitation as requested by DAI’s agency-level protest.
Offerors on federal government procurements are considered to have constructive knowledge of postings on the FedBizOpps website (www.fbo.gov). The FedBizOpps posting for this procurement consistently showed the deadline for receipt of proposals as July 9, 2013, even after DAI filed its agency-level protest. Thus, once the July 9th deadline came and went, DAI had constructive notice that the agency was not taking action in response to DAI’s protest, Because a timely protest must be filed within 10 days of actual or constructive knowledge of initial adverse agency action, DAI would have had to have filed its protest by July 19, 2013. As a result, its protest filed on July 31st was untimely, and dismissed by GAO.
A protest to the procuring agency can provide a quick and relatively inexpensive avenue to challenge a solicitation’s terms. However, contractors choosing to try their luck with an agency-level protest need to be careful not to assume an agency will postpone the deadline for receipt of proposals because of the protest. The protester should continue to monitor the procurement, such as through FedBizOpps. If the agency moves forward with the procurement, the contractor needs to know as that starts the clock on a possible protest to GAO.