Link: GAO Opinion
Agency: Department of the Navy
Disposition: Protest dismissed.
Protest to GAO of the exclusion of the protester’s proposal from the competitive range is untimely filed, where the matter was initially protested to the contracting agency but was not filed with the agency within 10 days of the date that the protester learned the basis of its protest; the exception in GAO’s Bid Protest Regulations for filing a protest with GAO after receipt of a required debriefing does not apply to filing an agency-level protest, the timeliness of which is governed by the Federal Acquisition Regulation.
General Counsel P.C. Highlight:
M2 complains that the Navy unreasonably evaluated the firm’s proposal and did not recognize that its high-priced offer reflected the best value to the agency. GAO states that the Bid Protest Regulations contain strict rules for the timely submission of protests. Under these rules, a protest, of other than an alleged apparent solicitation impropriety, must be filed no later than 10 calendar days after the protester knew, or should have known, of the basis for protest, whichever is earlier. Further, a matter initially protested to the contracting agency will be considered timely by GAO only if the initial agency-level protest was filed within the time limits provide by the Regulations for filing a protest with GAO unless the contracting agency imposes a more stringent time for filing, in which case the agency’s time for filing will control. The timeliness rules reflect the dual requirements of giving parties a fair opportunity to present their cases and resolving protests expeditiously without unduly disrupting or delaying the procurement process.
On November 6, 2008, M2 received a detailed letter from the Navy informing the firm that its proposal was excluded from the competitive range and the reasons for that exclusion. On November 7, M2 requested a pre-award debriefing, which was telephonically provided to M2 on November 20. Thereafter, on November 26, M2 filed an agency-level protest with the Navy, challenging the Navy’s technical rating of the firm’s proposal and failure to consider M2’s best value solution, albeit at a higher price. On December 11, the Navy dismissed M2’s agency-level protest as untimely, because the protest was not filed within 10 calendar days of the Navy’s November 6 letter to M2, and no additional information was provided to M2 in the Navy’s telephonic debriefing. On December 17, M2 protested to GAO.
GAO agrees with the Navy that the November 6 letter to M2 informed the firm of the reasons its proposal was excluded from the competitive range, and that a protest of that exclusion was required to be filed within 10 calendar days of that date. M2 knew from the November 6 letter the reasons that the Navy considered the firm’s proposal to be technically unacceptable. The Federal Acquisition Regulation (FAR) provides that protests filed with the contracting agency, of other than solicitation improprieties, must be filed no later than 10 days after the basis of protest is known or should have been known. Because M2’s agency-level protest was not filed until November 26, more than 10 days from the firm’s receipt of the November 6 letter, the agency-level protest was not timely filed in accordance with the FAR’s timeliness rules for filing protests with the agency. Accordingly, M2’s protest to GAO subsequent to the firm’s agency-level protest cannot be considered timely and is therefore dismissed.