As anyone in the federal contracting line of work knows, deadlines come at you fast and hard. In a recent GAO decision, GAO refused to relax the timeliness rules associated with protests of solicitation requirements, even where that left the contractor with very little time to protest.
In Warrior Service Company, B-417491 (May 13, 2019), Warrior Service Company protested the time to submit proposals to the VA for certain brand name or equal shower chairs. The solicitation for the chairs was posted on Wednesday, April 3, while proposals were due the following Monday, April 8. Six vendors, including Warrior, submitted proposals by the due date.
Even though it had submitted its proposal already, Warrior protested the terms of the solicitation a week later on April 15, arguing that the solicitation “did not provide enough time to prepare a quotation and the brand name or equal requirement unduly restricts competition.”
Generally, GAO regulations impose strict deadlines on protests of solicitation terms, like this protest. As we’ve talked about in a previous post, 4 C.F.R. § 21.2(a)(1) requires “protests 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.” In other words, any complaints about the terms of a solicitation must be included in a protest filed before the proposal due date.
While this is usually the case, the protester here pointed to a few cases allowing for exceptions to the rule. For example, in The Big Picture Company, B-210535 (Feb. 17, 1983), GAO extended its deadline for a protester because it had not received an allegedly defective amendment to a solicitation until one day before the bid opening. There, GAO concluded that “Big Picture did not have a reasonable opportunity to file its protest before bid opening.” Here, GAO did not find the circumstances as extreme.
GAO emphasized that “[i]n order to prevent [its] strict timeliness rules from becoming meaningless, exceptions are strictly construed and rarely used.” While it also cited a number of cases where it had allowed for exceptions to the timeliness rule at issue, all included a protest window no longer than one day.
Additionally, GAO noted that “[i]n other cases [it had] found that a shorter time period–two or three days–prior to a bid or proposal closing date afforded vendors a reasonable opportunity to file a protest challenging the terms of a solicitation.” While the protesters in this case only had around three full working days to put together its protest, GAO still held that this was enough time for Warrior to file.
Many contractors find themselves in similar time-sensitive positions, but should not delay filing protests until it’s too late. If you think you have grounds to protest, and would like the assistance of a government contracts attorney experienced in handling GAO deadlines, don’t hesitate to call Koprince Law ASAP!