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.
GAO dismissed a protest of a sole source award earlier this month where the protestor missed the cutoff by just one day. The protest, Western Star Hospital Authority, Inc., B-414198.2 (June 7, 2017) involved an Army procurement for ambulance services for the U.S. Army at Fort Dix, New Jersey.
The work was originally competed, and Western Star Hospital Authority, Inc. submitted a proposal. The Army rejected Western Star’s proposal, saying that Western Star had not proposed pricing for all CLINs, as required by the solicitation.
Western Star protested the evaluation, saying that the Army had not correctly evaluated its CLIN pricing. The Army told GAO it was going to take corrective action, readmit Western Star to the competition, evaluate its proposal, and make a new award decision. After receiving the Army’s notice of corrective action, Western Star withdrew its protest. It may have figured the Army would quickly evaluate the omitted CLINs and award the contract.
But nearly two months passed without a word. Meanwhile, the incumbent contractor, Logistical Customer Service, Inc., had been performing a five-month bridge contract that the Army had awarded on a sole source basis when Western Star’s initial protest activated a stay. In March, the bridge contract was set to expire. So, on March 24, the Army posted a J&A on FedBizOpps, saying that it was going to award another short-term, sole-source contract to the incumbent to prevent a break in services while the corrective action was completed.
Around that same time, the 120-day acceptance period of all proposals expired. The Army asked Western Star to extend the acceptance period another five months. But Western Star balked and said that it was going to involve GAO. Without an acceptable proposal, the Army excluded Western Star from further consideration.
Western Star filed a second GAO protest on April 4, challenging, among other things, the second sole-source contract to the incumbent. The Army argued that the protest should be dismissed as untimely.
The GAO agreed. It wrote, “[u]nder our Bid Protest Regulations, a protest based on other than alleged improprieties in a solicitation must be filed no later than 10 calendar days after the protester knew, or should have known, the basis for protest, whichever is earlier.” In this case, “as the Army correctly points out, [Western Star’s] protest is untimely because it was filed on April 4, or 11 days after the agency posted the notice and J&A to issue the sole source contract.”
GAO agreed and dismissed this aspect of Western Star’s protest. (It denied the other claims on the basis that Western Star had expressly refused to extend the time for acceptance of its proposal and the proposal could not be revived.)
While Western Star apparently didn’t raise the issue, it’s worth noting that it wouldn’t have made any difference if Western Star had not actually seen the FedBizOpps posting until sometime after March 24. The GAO has previously held that contractors are “charged with constructive knowledge of procurement actions published” on FedBizOpps. In other words, under the GAO’s timeliness rules, a contractor “should have known” of an item published on FedBizOpps, even if it didn’t have actual knowledge.
Thus, Western Star lost the protest and the chance to perform the work because of a document that it may or may not have even known existed. This goes to show that there is little room for error when it comes to GAO bid protests. In the case of a sole source award, a contractor must keep a close watch on FedBizOpps or risk losing out on the chance to file a GAO bid protest.