Bid Protest Weekly Newsletter by Bryan R. King, Attorney, General Counsel PC
Date: Friday, December 20, 2013, 1:52pm EST
Empire Veteran Group, Inc., B-408866.2, B-4088663., December 17, 2013
Recently, we have addressed deadlines for filing GAO bid protests challenging the terms of a solicitation and also following an agency-level protest. A recent decision released by GAO addresses a third deadline for filing a protest: where the protester is challenging an agency’s evaluation of its proposal.
Generally, an unsuccessful offeror challenging any aspect of a procurement (other than challenges to solicitation terms), must file a protest within 10 days after the basis of the protest is known or should have been known. This includes challenges to an agency’s proposal evaluation or the ultimate award decision. The 10 day deadline is affected, however, by required debriefings. In a negotiated procurement (as opposed to a sealed bid or commercial items procurement), unsuccessful offerors are entitled to receive a debriefing after being excluded from the competitive range, or after receiving notice of award to another offeror.
In order to receive this required debriefing, the unsuccessful offeror must request the debriefing within 3 days of receiving notice that either it has been excluded from competition, or an award has been made to another offeror. If the unsuccessful offeror makes a timely request for a debriefing, the protest window shifts so that a protest cannot be filed until the debriefing is held, but must be filed within 10 days after the date of the debriefing. Contracting officers are required to hold debriefings as soon as possible, but the wait for a debriefing can delay the protest process.
In Empire Veteran Group, Inc., the protester challenged the agency’s evaluation, and the exclusion of its proposal for further consideration, under a solicitation issued by the U.S. Department of the Army, Corps of Engineers. In its evaluation of the protester’s proposal, the agency identified two deficiencies that rendered the proposal unacceptable. On August 15th, the agency notified the protester that its proposal was no longer being considered, and that it was entitled to receive a debriefing. The protester requested a debriefing six days later on August 21st. After a conversation with the protester, the agency issued a revised notice letter on September 5th, in which the protester was informed its proposal remained unacceptable. On September 11th, the protester filed a protest with GAO challenging the agency’s evaluation and exclusion of its proposal.
It seems in this case the protester attempted to file its protest within 10 days of receiving the agency’s revised notice letter. GAO recognized that in cases where a required debriefing is held, the deadline for filing such a protest does shift to after the date of the debriefing. However, because the protester in this case failed to request a debriefing within the required 3 day window, it was ineligible to take advantage of that alternate deadline. Thus, the protester was left with the original protest filing deadline—within 10 days of when it knew or should have known of its grounds of protest. GAO found that the protester was on notice of its protest grounds as of the August 15th notice letter. Because the protester filed its protest on September 11th, well after the 10 day deadline, GAO dismissed the protester’s challenge as untimely.
One of the advantages of pursuing a protest with GAO is that the process moves relatively quickly as compared to other forums. This is important for agencies needing goods and services, and also for awardees looking to get going with performance. A byproduct of the speedy process is that unsuccessful offerors don’t have a lot of time to waste in deciding whether to pursue a protest. Unsuccessful offerors must be extremely vigilant with respect to GAO’s protest deadlines, otherwise they run the risk of having a protest dismissed due to untimeliness.