Ignorance is Bliss? Not When it Comes to Timely Filing of Protest, Says GAO

Ignorance is bliss, right? Not always. In the world of government contracting, GAO recently dismissed a protest because its initial agency protest was not timely filed, reminding the protester that ignorance of the law is no excuse.

In Best Practices Group, B-417768 (July 30, 2019), the VA had issued a solicitation for a contractor to maintain a VA Medical Center’s cancer registry database, with proposals due on May 13, 2019. The protester, BPG, submitted a timely proposal, but on June 13, the VA awarded the contract to another competitor. Opposing the award, BPG filed an agency-level protest with the VA on July 1, more than two weeks after the award date. BPG made two primary arguments in its agency protest, but the VA dismissed both arguments as untimely under FAR 33.103(e) (the agency protest timing rules that are similar to GAO timing rules).

First, BPG argued that the solicitation was defective. The VA promptly dismissed this argument, as protests regarding the contents of a solicitation are generally due before the bid due date.

Second, BPG argued that the VA improperly evaluated proposals. Again, the VA dismissed this ground because the protest had not been filed within 10 days of the award notice, as required under the applicable regulations.

Despite the VA’s complete dismissal of its protest, BPG filed a similar protest with GAO on July 17, more than a month after award was made. After the VA submitted a dismissal request, BPG argued that “it was unfamiliar with the procedures for filing a protest; it was awaiting receipt of an award notice from the VA that would include its appeal rights; and that it promptly filed its protest once it determined that no information was forthcoming.”

Similar to the first go-around, GAO pointed out that both BPG’s protest grounds were untimely. 4 C.F.R. § 21.2(a)(1) requires that a “a protest based on alleged improprieties in a solicitation must be filed prior to bid opening or the time established for receipt of proposals,” while 4 C.F.R. § 21.2(a)(2) requires that “all other protests 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.”

In response to BPG’s argument that it did not know the timing rules and was awaiting information from the VA, GAO reminded everyone that “neither a protester’s unfamiliarity with our regulations, nor its decision to wait for the agency to inform it of its protest rights, provides a basis for suspending our timeliness regulations.” Because all regulations governing cases before GAO are published and publicly available through the Code of Federal Regulations, “protesters are charged with constructive notice of their contents” and any “protester’s professed lack of knowledge of these published regulations is not a basis for waiving their requirements.”

Don’t get caught not knowing the rules, like these unfortunate protesters did! The CFR is freely accessible online in a number of places (including here, here, and here). When in doubt, don’t wait to call us either!