A prospective contractor has the right to file a GAO bid protest challenging an agency’s refusal to set aside a solicitation for small businesses–but only if the protest is filed before the proposal deadline.

In a recent protest decision, the GAO applied the longstanding rule that “alleged improprieties in a solicitation that are apparent prior to the closing time for receipt of initial proposals be filed before that time,” and held that an agency’s failure to issue a set-aside is an “alleged impropriety” to which the timeliness rule applies.

In FitNet Purchasing Alliance, B-410797 (Feb. 12, 2015), the Air Force issued a request for quotations for seventeen pieces of resistance training equipment on a brand-name-or-equal basis, with award to be made to the vendor submitting the lowest-priced, technically acceptable quote.  The RFQ contemplated the award of a fixed-priced contract and was issued on an unrestricted basis.  Quotations were due by August 29, 2014.

The Air Force received two quotations, one from FitNet Purchasing Alliance and one from Life Fitness.  After reviewing quotations, the Air Force awarded the contract to Life Fitness.

On November 17, 2014, FitNet filed a bid protest with GAO.  FitNet argued, in part, that the RFQ should have been set aside for small businesses since the contract was valued between $3,000 and $150,000.

The GAO noted that the RFQ specifically stated that the procurement was being conducted on the basis of “Full and Open Competition.”  Further, FedBizOpps also indicated that the RFQ was not set aside for small businesses where it included the designation “N/A” under the headings “Original Set Aside” and “Set Aside.”

The GAO wrote that its Bid Protest Regulations require that a protest based on alleged improprieties in a solicitation that are apparent prior to the closing time for receipt of initial proposals be filed before that time.  Here, it was evident from the face of the RFQ that it was not being set aside for small business.  Therefore, any timely protest had to be filed by the August 29 closing date.  FitNet’s protest–filed in November–was too late to challenge this alleged impropriety, and the GAO dismissed this portion of the protest.

The GAO’s decision in FitNet Purchasing Alliance demonstrates that an agency’s set aside decision ordinarily must be protested before proposals are due.  If a protester tries to raise the issue after award (or at any other time after the proposal due date passes), the challenge is likely to be dismissed as untimely.