Agency: Department of Homeland Security
Disposition: Protest Dismissed
Decided: June 24, 2020
Keywords: Timeliness of Protest, Filing Deadlines
General Counsel P.C. Highlight: A protest based on challenges, other than alleged improprieties in a solicitation, 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.
Summary of Facts
AGMA Security Service, Inc., a small business, protests the extension of a contract awarded to The COGAR Group, Ltd., by the Department of Homeland Security (DHS), Federal Protective Service, for armed protective security officer (PSO) services at Customs and Border Protection facilities in Puerto Rico. COGAR currently has a contract for PSO services under a 2014 award.
May 2, 2019 DHS issued an RFP seeking proposals from participants in the SBA’s section 8(a) program to provide PSO services. After reviewing multiple proposals, DHS selected Diversified Protection Corporation for award. A protest was filed challenging Diversified’s eligibility for award as a small business, and the SBA ruled that Diversified was not eligible for award.
Instead of reevaluating the remaining proposals, DHS notified the offerors that the RFP had been canceled, and a new RFP would be released in the future. However, on February 20, the contracting officer prepared a sole-source justification and approval (J&A) document to extend COGAR’s contract for one year. The J&A was approved on March 23. On March 25, DHS posted a notice stating that DHS would extend the contract with COGAR. AGMA filed this protest on April 7.
Basis of Protest
DHS argues AGMA’s protest is untimely, since AGMA knew or should have known the bases for its challenges to DHS’s action no later than March 26, after the notice was posted. Since DHS’s protest was filed 12 days later, DHS argues that the protest is untimely and should be dismissed. AGMA argues its protest is timely because until DHS released the J&A, it lacked sufficient information to file a protest.
GAO explained that Bid Protest Regulations have strict rules for the timely submission of protests. “Under these rules, a protest based on other than alleged improprieties in a solicitation 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.”
GAO found that all of AGMA’s arguments challenge DHS’s decision to initiate a sole-source contracting action with COGAR on the basis that it was the only firm able to provide PSO services. DHS’s intent to take that action and its belief that there was only one possible source were both apparent from the March 25 notice. Thus, GAO determined that AGMA knew or should have known that DHS believed that COGAR was the only responsible source and that it believed that it could also meet DHS’s requirements and, thus, had a basis to challenge the agency’s rationale. GAO also determined that AGMA knew that DHS intended to extend COGAR’s contract, and AGMA believed that such extension would violate the regulations. Based on this, GAO concluded that in order to be timely, AGMA had to file any protest challenging DHS’s sole-source contracting action within 10 days. Since the protest was filed 12 days later, GAO concluded it was untimely.
The GAO dismissed the protest on this basis.