Back to Basics: GAO’s Protest Timeliness Rules

Here in Kansas, it is certainly starting to feel like thunderstorm season–and one of my favorite seasons, I might add. But over in D.C., some may say it is starting to feel like protest season! That said, anyone familiar with the protest process at D.C.’s Government Accountability Office (GAO) is probably also quite familiar with the strict timeliness rules GAO applies to such protests. And frankly, even for the seasoned GAO protesters, a refresher on the timeliness rules can be quite beneficial–especially given the answer to when a certain type of protest is due is not always an easy calculation. So, let’s take it back to the basics and run through some of those rules here.

Indeed, GAO’s protest rules set forth strict filing deadlines, which are most appropriately split into the following two categories: protests to a solicitation’s terms and everything else.

Notably, you might also have heard GAO protests discussed as either: pre-award protests or post-award protests (and there is another recent Back to Basics blog focused on pre-award protests here). While that is certainly a fair way to categorize GAO protests generally (i.e., you are either protesting something that happens before the final award/awards or after), it is not the schema I recommend relying on when it comes to GAO’s timeliness rules–as it is simply not the most accurate way to divide up GAO’s two main overarching timeliness rules (for reasons you will see as we dive into the rules below).

So, for purposes of this blog and GAO’s timeliness rules, we will stick with the safer (albeit more vague) categorization of protests to a solicitation’s terms and everything else. The good news is, both categories of GAO’s timeliness rules can be found under the same time for filing regulation.

GAO Protests to Solicitation’s Terms

The first section of the regulation discusses the protest to a solicitation’s terms. Those are generally described by GAO as: “[p]rotests based upon alleged improprieties in a solicitation which are apparent prior to bid opening or the time set for receipt of initial proposals[.]” And GAO’s timeliness rules require that such protests “shall be filed prior to bid opening or the time set for receipt of initial proposals.”

This protest timeliness rule does add, however:

In procurements where proposals are requested, alleged improprieties which do not exist in the initial solicitation but which are subsequently incorporated into the solicitation must be protested not later than the next closing time for receipt of proposals following the incorporation.

And if a protest to a solicitation’s terms doesn’t quite fit into either of those situations, the rule also provides for one more potential situation, as follows:

If no closing time has been established, or if no further submissions are anticipated, any alleged solicitation improprieties must be protested within 10 days of when the alleged impropriety was known or should have been known.

So, to sum up the timeliness rule for protests to a solicitation’s terms, there are really three situations with three different deadlines:

  • Situation One: Protests of an issue apparent in the initial solicitation–due by the time of bid opening or proposal deadline.
  • Situation Two: Protests of an issue that becomes apparent in a subsequent solicitation document (often an amendment, incorporated Q&A, etc.)–due by the next closing time for proposals.
  • Situation Three: Protests of a solicitation issue where there is no established closing time for proposals or there won’t be any further proposal submissions–due within 10 days of when the issue became (or should have become) known to the protester.

A quick note here, the term “should have known” might be one that stuck out in reading the rules above–and rightfully so. It is not easily defined, but is rather quite fact specific. And frankly, going into the details of GAO’s history of holdings regarding “should have known” is beyond the scope of this basics blog. So, for now, just think of “should have known” as meaning the protester had information available to them that a reasonable person would have used to identify the protestable issue at that time (here is past blog on one GAO case discussing the issue).

GAO Protests to Everything Else

The other category of GAO protest–everything else–does indeed cover post-award protests. But that is certainly not all it covers, as it may also include protests regarding pre-award eliminations, phase-based eliminations, established competitive ranges, and oh so many more. Also, this timeliness rule is expressly defined by GAO as a catch-all. Indeed, GAO’s timeliness rules merely call these: “[p]rotests other than those covered by” the section of the timeliness regulation for protest to the solicitation’s terms (discussed above). And GAO says this type of protest shall be filed not later than 10 days after the basis of protest is known or should have been known (whichever is earlier), with the exception of protests challenging a procurement conducted on the basis of competitive proposals under which a debriefing is requested and, when requested, is required. In such cases, with respect to any protest basis which is known or should have been known either before or as a result of the debriefing, and which does not involve an alleged solicitation impropriety covered by [the pre-award protest timeliness] section, the initial protest shall not be filed before the debriefing date offered to the protester, but shall be filed not later than 10 days after the date on which the debriefing is held.

So, crystal clear right? Don’t worry, we will unpack this one a bit, just as we did in the first section, here in a minute.

But first, another quick note here: if you are newer to the federal procurement world and currently asking yourself what on earth a “debriefing” is–or if you are asking the slightly more complex question of when a debriefing is required (and/or how to timely request one), you can read yet another Back to Basics blog all about debriefings here. [Spoiler alert for the latter questions, those answers will generally depend on what part of the Federal Acquisition Regulations (FAR) the procurement is being conducted under and what your solicitation and/or notice of award says in that regard.]

So, to sum up the post-award/everything else protest timeliness rule: generally, such a protest would be due within 10 days of the day you knew/should have known of the protestable issue. But if the procurement is one where a debriefing is both required and timely requested, that may change things a bit. So why the vague language here–when I am supposed to be making the rule clearer for you? Well, that is because the timeliness rules for protests that fit into the latter category here are intensely fact specific, and we could (and probably will at some point) do an entire blog just on that topic.

But in a nutshell, the question will usually come down to whether (and to what extent) the protestable issue was known/should have been known from any type of pre-debriefing notices of award/unsuccessful offeror/elimination/etc. And this analysis may often come down to a balancing of risks for the protester. On one hand, such a protest filed before the debriefing (where the issue is covered in the debriefing) runs the risk of being dismissed as premature–but generally, without prejudice (meaning you could simply file again after the debriefing if the issue isn’t resolved therein). On the other, such a protest filed within 10 days after the debriefing (where the issue was potentially identifiable earlier) runs the risk of being dismissed as untimely–meaning the right to protest that issue would be gone. Again, we could discuss this all day, and we won’t (but if you are debating this issue/balancing these risks for your own protest, promptly talking to an expert is certainly a good idea).

So, those are the two main types of GAO protest timeliness rules. But for the sake of being thorough, I will briefly note three more items covered by GAO’s time for filing regulation–and a final note regarding stays of performance/award.

Additional Items Covered in GAO’s Time for Filing Regulation

First, the regulation separately addresses situations where an agency-level protest is timely filed, and the protester wishes to subsequently protest the issue at GAO. Those rules are a bit unique and I won’t cover them here, as they are outside the scope of this blog (but for some information on that scenario, check out these prior blogs, found here, here, and here).

Second, the regulation expressly gives GAO the right to dismiss untimely protests, and it puts the burden on the protester to establish timeliness. It states:

Protests untimely on their face may be dismissed. A protester shall include in its protest all information establishing the timeliness of the protest; a protester will not be permitted to introduce for the first time in a request for reconsideration information necessary to establish that the protest was timely.

But I do want to note the use of the word “may” in this quote–as it brings me to the final item covered in GAO’s time for filing regulation. Though we rarely see GAO apply this exception, the regulation does conclude with the following: “GAO, for good cause shown, or where it determines that a protest raises issues significant to the procurement system, may consider an untimely protest.” Again, this is not something wise to rely on when deciding when to file a GAO protest. But it is still important to note the existence of this exception, as it has the potential to save an untimely protest where GAO finds good cause or significant justification to do so.

Stays of Performance

Last but not least, GAO’s time for filing regulation does not speak to stays of performance or award (and I will not go into the details of that topic here either). But I would be remiss to not at least note in this blog that a separate rule found in the FAR covers the requirements for agencies to stay an award or performance of a contract in response to a timely-filed protest. Importantly, if a stay is something the protester hopes to impose, section (f) of this rule should be read very carefully–as it imposes a shorter, five-day filing deadline, on the protester in some situations. But the rule also explains that the right to request a stay of performance or award doesn’t always guarantee one will be imposed either.

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If the length of this “basics” blog didn’t tip you off, let me tell you now: knowing when to file a GAO protest is not always a simple calculation of days (funny enough, even the word “days” is separately defined in another section of GAO’s bid protest regulations). And the ramifications of not knowing the timeliness rules can be pretty severe. So, knowing your timeliness rules is key.

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