GAO Bid Protests: A Wrinkle In Time(liness)

As our regular readers know, a GAO protest challenging an agency’s evaluation decision must be filed within 10 days from the date the protester knew (or should have known) of the protest grounds, or within 10 days from the date the protester receives its debriefing (but only if the debriefing was required and timely requested). 4 C.F.R. § 21.2(a)(2).

But sometimes, an agency might give an offeror a reason to protest before it makes its official award determination. In that case, should the offeror wait to file its protest until the agency completes its evaluation?

In some cases, no—the protest should be filed within 10 days from the date the agency makes its determination known.

This timeliness wrinkle was discussed recently in Bastion Technologies, Inc., B-418432 (May 5, 2020). There, Bastion submitted a bid under a NASA procurement seeking services in support of human space flight programs. The solicitation contemplated that, for the past performance evaluation, NASA would review offerors’ submitted past performance information forms (PPIF). Each form was limited to describing only one contract award, and prime offerors were restricted on submitting more than three contracts per team member.

Bastion submitted its proposal on December 16, 2019. It included three PPIFs, each of which discussed multiple contracts.

On January 22—before it had completed its source selection evaluation—NASA notified Bastion that it would not consider its PPIFs because they violated the solicitation’s instructions.

Believing that NASA’s interpretation of the PPIF requirements exposed a latent ambiguity, Bastion then filed a GAO protest on January 29 (while the evaluation was ongoing).

Considering this argument, GAO noted the “unusual procedural posture” it presented. That is, the protest was not properly a pre-award protest challenging the terms of the solicitation, because Bastion did not know of NASA’s interpretation of the PPIF requirement until January 22, after proposals were due. But at the same time, the protest wasn’t truly a post-award protest either, as the evaluation was still ongoing at the time it was filed.

Nonetheless, GAO considered Bastion’s argument. “Protests that an agency has evaluated proposals in a manner that is inconsistent with the terms of a solicitation,” GAO noted, “generally are filed after the agency announces its source selection decision[.]” And though GAO will typically dismiss a protest that challenges an evaluation as speculative or premature if the evaluation has not yet been completed, Bastion’s protest presented a wrinkle to this rule:

However, where, as here, the agency makes clear its interpretation of the solicitation through substantive written notice during its evaluation, it may render an issue sufficiently final such that our Office’s consideration of the issues is the most efficient, least intrusive method to resolving the dispute.

Because NASA “effectively announced its interpretation” of the PPIF requirements to Bastion on January 22, Bastion’s protest challenging that interpretation was timely. This procedural wrinkle addressed, GAO considered (and denied) the merits of Bastion’s arguments.

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We write a lot about timeliness considerations for bid protests. And for good reason: GAO’s protest filing deadlines can be complicated, as Bastion Technologies helps to show. Though complex, these rules are crucial to understand because, if a protest is filed late, GAO won’t consider it.

If you have any questions about GAO protests, email us or give us a call at 785-200-8919.