As we’ve discussed in previous posts, if you want to initiate a size protest, you generally must do so within 5 business days after the contracting officer notifies you of the prospective awardee’s identity.
But what happens if, after learning that you did not receive the award, the agency does something that suggests its award decision wasn’t final–e.g., reopens discussions with offerors and seeks revised proposals? Would your size protest still be late if didn’t file within the 5-day time frame?
Take a guess. And keep reading to find out the answer!
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.
Readers of this blog will know that the GAO interprets its protest timeliness rules quite strictly. A recent GAO case provides us with an opportunity to review a nuanced piece of those timeliness rules. Specifically, how withdrawal of an agency-level protest affects the deadline to file a GAO protest, and what counts as a withdrawal of an agency-level protest versus an “initial adverse agency action.”
In this case, the protester lost its GAO protest rights by trying to pursue its agency-level protest with an inspector general’s office rather than with the contracting officer.
Contractors would be wise to keep a close watch on FedBizOpps.gov, otherwise they run the risk missing the chance to protest a sole source award.
When an agency decides to make an award without competition, it often must publish a Justification and Approval (referred to simply as a “J&A”) on FedBizOpps explaining why a competition would not meet the agency’s needs. A potential competitor seeking to protest such an award at the GAO must file the protest before 10 days have passed from publication of the J&A, otherwise the protest may be untimely. A competitor that is not paying attention could be out of luck.
A protester’s failure to timely file its bid protest at GAO is almost always certain to lead to the dismissal of its protest. But knowing when the clock starts running for an offeror to file its protest isn’t always clear.
This uncertainty recently tripped up a would-be protester seeking to challenge its exclusion from the competitive range—because that offeror failed to request a pre-award debriefing, its attempt to protest its exclusion following the award and a post-award debriefing was untimely.
GAO’s filing deadlines are strict, and a protest that does not abide by them generally will be dismissed. In All Native, Inc., B-411693 et al. (Oct. 5, 2015), the GAO expanded upon this rule by dismissing a protest where the protester missed a filing deadline by a single day. In doing so, the GAO refused to extend the deadline merely because the GAO’s email setting that deadline apparently ended up in the protester’s “spam” email folder.
A SBA size protest related to a sealed bid must be filed within five business days of bid opening–and the bid protest rules under FAR Part 33 do not provide for a longer protest window.
In a recent decision, the SBA Office of Hearings and Appeals confirmed that, when it comes to size protests, the timeliness rules for bid protests (which allow many protests to be filed within 10 days after the basis of protest was known or should have been known) simply do not apply.