Washington Business Journal by Lee Dougherty, Attorney, General Counsel PC
So, late is late and there are never exceptions to requirements that protests be filed in a timely manner, right? Not exactly. This case gives us a rare example of when a protest that falls short of timeliness requirements is considered and a recommendation made by the GAO.
Protesting contractor: Cyberdata Technologies, Inc, Herndon, Virginia
Contracting agency: General Services Administration
Issue: Whether the agency should have considered price in its down-select process.
GAO decision, August 8, 2012: Sustained.
Post-mortem: The GSA issued a request for quotations for the establishment of six blanket purchase agreements, which included a provision that stated GSA would “downsize the number of quotations to no more than twelve of the most favorably evaluated quotations.” Through question and answer sessions, vendors were told that downsizing would be “based on technical quotation only,” without regard to price. Cyberdata was one of 35 quotes submitted and one of 23 excluded from the competition.
Cyberdata protested its exclusion without consideration of price, and the GSA argued in response that Cyberdata’s protest was not timely, due to Cyberdata’s failure to file in response to the original solicitation that clearly stated the terms of the down-selection process. The GAO agreed that Cyberdata’s protest was untimely.
In all but the rarest of cases, an untimely protest would be dismissed. In this case, the GAO exercised a regulation that allows it to consider untimely protests that “raise issues significant to the procurement system.” It found that “a best value analysis necessarily encompasses consideration of an offeror’s price or cost since, to be meaningful, a best value determination requires a weighing of the value and benefits associated with a firms approach against their associated cost.”
Although it sustained the protest and recommended that the RFQ be amended to provide for evaluation of price, the GAO did not recommend reimbursement of costs to the protestor due to the protest not being timely.
What I find most astonishing is that 35 contractors submitted quotes for what is a blatantly flawed solicitation, without any protests. In this case the seriousness of the flaw drove GAO to make an exception to its standard, but contractors should not rely on such an exception to the timeliness rules when deciding whether to protest a solicitation.