Don’t Wait Until It’s Too Late: GAO Dismisses Claim of Agency Bias as Untimely

In Adams and Associates, Inc., B-417120 et al. (Comp. Gen. Jan. 16, 2019), GAO dismissed a post-award protest, which alleged agency bias and retaliation against the protester, as untimely.

The GAO’s decision highlights the uphill battle contractors face when alleging agency bias.

In this case, the Department of Labor issued two solicitations, each seeking services for the operation of a Job Corps Center. The Department’s Office of Contract Management (or “OCM”) has overseen all Job Corps Center procurements for close to the last eight years and, as indicated in each solicitation, was to oversee the procurements at issue here.

Adams and Associates had interacted with OCM prior to the issuance of these solicitations. Specifically, the two appear to have had several run-ins regarding Adams’ previous protests related to Job Corps Center procurements. Still, Adams submitted proposals in response to both solicitations, without filing a pre-award protest challenging OCM’s involvement.

After evaluating proposals, the DOL announced that both contracts would be awarded to one of Adams’ competitors. Adams protested, arguing that OCM had “taken a number of retaliatory measures and expressed bias against Adams based on its bid protests and other advocacy regarding Job Corps Center procurements.” Specifically, Adams argued that it should be entitled to reevaluation of its proposals “‘without any input or interference by DOL’s [OCM] or other DOL Headquarters personnel.”

GAO disagreed.

GAO rooted its decision in 4 C.F.R. § 21.2(a)(1), under which “[p]rotests based upon alleged improprieties in a solicitation which are apparent prior to bid opening or the time set for receipt of initial proposals shall be filed prior to bid opening or the time set for receipt of initial proposals.” Though this provision is often cited in reference to issues with the terms of a solicitation itself, here, GAO explained that Adams was pointing to an issue which was apparent from the solicitation as soon as the solicitations were issued. It stated that “there [was] no question that the factual predicates for Adams’ bias and retaliation allegations were reasonably known to the protester prior to the closing times for proposals,” and thus, protest following award was inherently untimely.

GAO also spoke to the policy behind its timeliness rules. Not only are its rules intended to “reflect the dual requirements of giving parties a fair opportunity to present their cases,” they are also in place to “resolv[e] protests expeditiously without unduly disrupting or delaying the procurement process[.]” GAO explained that its rules also seek to promote “fundamental fairness in the competitive process by preventing an offeror from taking advantage of the government as well as other offerors, by waiting silently only to spring forward with an alleged defect in an effort to restart the procurement process, potentially armed with increased knowledge of its competitors’ position or information.”

As we’ve discussed previously, contractors should think very carefully before alleging agency bias as part of a bid protest. Bid protests alleging agency bias are very rarely sustained due to the high standards of proof imposed by GAO. What’s more, as demonstrated here, untimely filing issues can be another hurdle for contractors to overcome when alleging bias. Finally, allegations of bias could be seen as attacking the honesty and integrity of agency officials, and that may not sit well with the agency, especially if a contractor hopes to work with the same agency in the future.