Strict GAO Timeliness Rules Apply to Supplemental Protests

GAO interprets its bid protest timeliness rules very strictly, as readers of this blog will know. These timeliness rules typically pertain to the initial protest, but are equally important when a protester files a supplemental protest. Often, supplemental protests are filed after the protester receives the agency’s response and comes to learn new information that wasn’t previously available.

If a supplemental protest raises allegations independent of those set forth in the initial protest, the supplemental protest must independently satisfy GAO’s strict timeliness rules. A recent GAO decision shows how easy it can be to slip up on these deadlines when considering a supplemental protest.

In Medical Staffing Solutions USA, B-415571 (Dec. 13, 2017), the protester (MSS) objected to the award of a contract to WJM Professional Services, LLC for emergency physician services at an Army fort. 

MSS timely filed its initial protest on October 16, 2017. The four initial protest grounds were:

  1. Failure to evaluate WJM’s lack of past performance.
  2. That if WJM had been assigned a neutral past performance rating, it would not have been eligible for award.
  3. Improper evaluation of WJM’s technical proposal.
  4. An “unreasonable best-value tradeoff evaluation because MSS’s better past performance rating and lower price should have outweighed WJM’s superior technical rating and lack of past performance.”

In a GAO bid protest, when an agency intends to respond to a protest on its merits, the agency is required to submit an agency report, which contains the agency’s legal opposition and all relevant documentation. On November 3, the Army submitted a partial agency report containing all relevant documents except for the legal memorandum and contracting officer’s statement of facts.

The partial agency report included a Price Negotiation Memorandum, a technical evaluation document, and the relevant portions of WJM’s proposal. On November 15, the due date, the Army submitted the remainder of its agency report.

After an agency report is filed, the ball is back in the protester’s court. If the protester wants to continue the process and obtain a GAO decision, the protester must file comments on the agency report within 10 days of receipt.

On November 27, MSS filed its comments on the agency report. The comments were filed within the 10-day deadline after receipt of the complete agency report, that is, 10 days after November 15. (If you’re scratching your head wondering how November 27 can be 10 days after November 15, don’t worry, you’re not going crazy. Under GAO’s rules, if the 10th day falls on a weekend or federal holiday, the protester has until the next working day to file its comments. November 25, 2017, was a Saturday).

In its comments, MSS seemed to make new allegations based on the information MSS had learned in the November 3 partial agency report. For example, MSS contended that the agency had not properly evaluated the realism of WJM’s price.

GAO wrote that any independent protest grounds raised by MSS in its comments on the agency report were untimely. Under the GAO’s timeliness rules, a protest ordinarily must be filed within 10 days of the date the protester knew or should have known of the basis of protest. There’s no exception when the protester learns of the basis of protest as part of a partial agency report. Here, the submission of the partial agency report on November 3 triggered the knew-or-should-have-known date, and the supplemental protest grounds were raised on November 27, well after the 10-day period had ended on November 13.

While the calendar math is pretty easy, deciding what constitutes an “independent” protest ground seems much more difficult. GAO does not provide a definition for what makes for an independent protest ground, but it did a comparison of the initial and supplemental protest grounds that sheds a little light on the definition. In MSS’s case, GAO wrote:

Whereas the original protest allegations were predicated on the assertion that WJM lacked any relevant past performance, the allegations raised in the comments are predicated on the agency allegedly incorrectly evaluating WJM’s past performance and improperly applying price realism principles.  Furthermore, the later-raised allegations provide no support for the original protest grounds because arguing that the agency should have rated WJM’s past performance less favorably does not support the allegation that WJM lacked any past performance.  Similarly, arguing that the agency improperly conducted its tradeoff evaluation because the agency improperly conducted a price realism analysis does not support the allegation that the agency improperly failed to consider that WJM had no past performance.

GAO dismissed the protest.

The price realism distinction seems clear to me. The protestor did not attack the price-realism evaluation in the initial protest but raised it in the supplemental protest.

In contrast, the distinction between (a) WJM lacking “relevant past performance” (raised in the initial protest) versus (b) the agency “should have rated WJM’s past performance less favorably” (supplemental protest) is a pretty fine one. It’s hard to think MSS argued in its initial protest that the awardee had no past performance without also arguing that the evaluation of the past performance was flawed. But that was what GAO held.

Agencies often produce the entire agency report at the same time, meaning that the comments deadline and supplemental protest deadline are the same. But not always.

My take home lesson is: get a supplemental protest on file within 10 days of the first documents received from the agency, rather than having to rely on a comparison of the allegations raised in the initial and supplemental protest to determine if the supplemental grounds are “independent.” And if there’s any doubt as to whether a particular allegation is new, err on the side of caution and consider it a supplemental protest. That way, you potentially avoid losing a protest on such fine distinctions.