Thirty-eighth Time’s the Charm? Not for this Protester.

GAO dismissed a protest recently that was the 38th docketed GAO bid protest action regarding a single solicitation.

GAO said the protest was untimely. The decision is a reminder that even seasoned protesters who have gone through complicated bid protests have to stay mindful of GAO’s timeliness rules.

The matter, CredoGov, B-414389.38 (May 31, 2019), had to do with a Department of the Army solicitation seeking off-the-shelf items like computers, workstations, notebooks, and printers.

CredoGov, an Irvine, California business, had argued against amendments to the solicitation and that it was unreasonably held out of the competitive range. GAO dismissed both arguments, the first as an untimely challenge to the terms of the solicitation and the second as simply late.

Before we get in to it, a little background: This solicitation was issued May 2016 and has an estimated value of $5 billion. More than 50 companies submitted proposals and 11 months later, the Army selected nine awardees.

Several unsuccessful offerors protested to GAO and the Army agreed to take corrective action. It sent discussion letters to several unsuccessful offerors (including CredoGov) seeking revised proposals.

In response, several of the awardees filed complaints with the U.S. Court of Federal Claims alleging that the proposed corrective action was too broad. The court agreed and issued an injunction against the corrective action. The Army attempted to comply with the court’s ruling by accepting proposal revisions from “only those offerors whose deficiencies could be resolved through clarifications.” Clarifications, by the way, generally are reserved for minor issues like typos or obviously curable errors. Several of the unsuccessful offerors appealed the court’s decision to the United States Court of Appeals, Federal Circuit. The appeals court reversed the decision and reinstated the corrective action.

In the meantime, the Army had advised 12 additional offerors (including CredoGov) that they had not been selected for award. Those 12 filed bid protests at GAO. However, a 13th unsuccessful offeror protested directly to the Court of Federal Claims, rendering the GAO protests academic. GAO dismissed all 12 bid protests.

By this time, it was nearly the end of 2018, two-and-a-half years after the Army issued the solicitation. The Army decided it needed to revise the solicitation, re-solicit to all offerors, and seek new proposals.

CredoGov (and 46 others) submitted proposals. On March 14, the Army told CredoGov its proposal was excluded from the competitive range. CredoGov protested on March 27—13 days later.

CredoGov accused the Army of ignoring the Federal Circuit’s decision and said that the Army must make it’s decision based on the best and final offers that came out of the original corrective action. It also argued that the Army should not have eliminated it from the competitive range this time.

GAO dismissed both protest grounds.

The first, GAO said, was an untimely challenge to the terms of the solicitation and that “a protest allegation that challenges the ground rules the agency has announced for performing corrective action and recompetition is analogous to a challenge to the terms of the solicitation and must be filed prior to the deadline for submitting new or revised proposals.”

In other words, once you agree to play by the agency’s rules, you’ve forfeited your right to protest those rules.

For the second argument, GAO dismissed it simply because CredoGov waited too long. CredoGov learned it was eliminated on March 14 and did not protest until March 27. Because that was “more than 10 days after it knew or should have known of its alleged basis for protest” GAO said “complaints regarding exclusion of its proposal are not timely filed.”

GAO’s decision is a good reminder that even if litigation seems endless, GAO’s deadlines are incredibly strict.

And for what it is worth, GAO has not seen the end of this solicitation, not by a long shot. The 40th protest action related to this solicitation was filed May 13 and is currently open.