If we’ve said it once, we’ve said it a thousand times: when it comes to submitting your GAO protest, meeting GAO’s strict timeliness requirements is a must. So is watching out for notices on contract awards posted online. In Prudential Protective Services, LLC, B-418869 (Aug. 13, 2020), the protest was dismissed as untimely because it was filed more than 10 days after notice of the award was posted to beta.SAM.gov.
For a little context, the Census Bureau issued an initial short-term, sole-source task order to North American Security, Inc. in early April for “protective security officer services at the National Processing Center (NPC) located in Jeffersonville, Indiana.” Prudential protested the task order, arguing that it did not meet the necessary qualifications for a sole-source award. As we’ve discussed before, receiving a sole-source award can be incredibly lucrative, but must be adequately justified by the government.
In response to the initial protest, the Census Bureau moved to take corrective action by terminating the task order and re-competing it—this time under a new, competitive solicitation. As a result, the initial protest was dismissed.
Between the initial protest’s dismissal and June, Prudential contacted the Census Bureau to check in on how the corrective action was going. Though the Census Bureau told Prudential that a new solicitation would be issued, in the meantime, they also prepared a limited sources justification—which would allow it to issue a short-term, sole-source task order to North American which would last through the end of 2020. This action, the Census Bureau explained, would allow it “adequate and reasonable time to implement its corrective action in response to the earlier protest” and would prevent a lapse in critical security services.
After completing its justification documentation for the short-term task order, the Census Bureau issued it to North American on June 10. On June 15, a few days later, it published notice of the issuance on beta.SAM.gov. Two weeks after the notice was posted, Prudential filed a second protest.
In defending its protest, Prudential raised an interesting point regarding its protest timeliness. It argued that the Census Bureau had “failed to follow the notice requirements for the limited sources justification under FAR 8.405-6(a)(2), which requires the agency not only to post the justification” on beta.SAM.gov, but also on the procuring agency’s website. Because the Census Bureau had not placed any notice on its website, Prudential argued that it had not received adequate constructive notice.
Unfortunately for Prudential, GAO determined that, regardless, the protest was filed too late—after all, GAO has been clear about reminding protesters to keep an eye on sites where awards may be posted and on their e-mail inboxes to make sure their protests will be timely. Despite the FAR’s requirements, GAO confirmed that “[p]ublication on . . . beta.SAM.gov–which has been expressly designated by statute and regulation as the official public medium for providing notice of contracting actions by federal agencies–constitutes constructive notice of contracting actions.” It continued, explaining that even though the agency had previously posted notices about this procurement through GSA’s e-Buy website, posting on beta.SAM.gov was enough to give Prudential the notice required.
This case provides a serious lesson for federal contractors—regardless of the type of contract sought, keep tabs on beta.SAM.gov happenings! Though there may be other sources of information on awards, beta.SAM.gov is often the most important one to check—you can even set up alerts to help you stay on your toes! In any case, if you need assistance filing a protest in time, give us a call. We’re happy to help.