Link: GAO Opinion
Agency: Department of the Navy
Disposition: Protest dismissed.
Protest is untimely under GAO’s Bid Protest Regulations, where a protest on the same grounds was initially filed at the agency and denied, and filed with GAO more than 10 days after receipt of the denial; the protester’s receipt of a required debriefing after receipt of the denial of the agency-level protest does not toll or provide an exception to our timeliness rules where an agency-level protest was filed.
General Counsel P.C. Highlight:
The Navy argues that RTI’s protest to GAO is untimely because it was filed more than 10 days after the agency denied RTI’s request for reconsideration, which the agency argues constituted initial adverse agency action in response to an agency-level protest by RTI. RTI argues that its request for reconsideration was not an agency-level protest and that since it obtained a debriefing; it could file its protest within 10 days of the debriefing and be considered timely. GAO states that the Bid Protest Regulations contain strict rules for the timely submission of protests. Where a protest first has been filed with a contracting activity, any subsequent protest to GAO, to be considered timely, must be filed within 10 calendar days of “actual or constructive knowledge of initial adverse agency action.” The term “adverse agency action” means any action or inaction on the part of a contracting agency that is prejudicial to the position taken in a protest filed there. In this respect, 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.
The initial adverse agency action in response to this agency-level protest was the agency’s January 22 letter refusing to reconsider its decision to eliminate RTI’s proposal from the competition. RTI’s protest to GAO was filed on February 3, more than 10 days from when RTI learned of the initial adverse agency action on its agency-level protest. Therefore, RTI’s protest to GAO is untimely filed under the Bid Protest Regulations.
However, RTI nevertheless argues that its protest is timely because it was filed within 10 days of the required debriefing that it obtained from the agency. The Bid Protest Regulations provide an exception to the general, 10-day rule for filing a protest at GAO if the protest challenges “a procurement conducted on the basis of competitive proposals under which a debriefing is requested and, when requested, is required” and the protester has been afforded a required debriefing. Such a protest to GAO may be filed 10 days after the date on which the required debriefing is held. This exception is not applicable here, however, because RTI elected to file an agency-level protest, which is covered by 4 C.F.R. sect. 21.2(a) (3), which contains no exception to our timeliness rules based upon the request and receipt of a required debriefing. The protest is dismissed.