GAO Catch-22: A Protest is Both Too Late and Too Early

Over the years, we’ve written a fair number of blogs about how contractors have been either too early or too late to protest. What we haven’t blogged about is a situation where a contractor is premature and late. Unfortunately for one protester, GAO has recently confirmed that you can, indeed, be both too early and too late to protest.

GAO’s decision in Kord Technologies, Inc., B-417748.5 (Comp. Gen. Apr. 17, 2020), involved a procurement by the Missile Defense Agency (MDA) for support services at its Advanced Research Center. Kord timely submitted a proposal in response to the Solicitation.

Following evaluation of proposals, MDA made an award to DTechLogic, LLC. Kord subsequently protested the award before GAO. Kord’s principal argument was that its proposal should have been more highly rated under the Technical and Contract and Program Management factors. Specifically, Kord argued that its proposal contained numerous features that exceeded the performance requirements specified in the solicitation, so it should have been awarded additional strengths under these areas.

In response to the protest, MDA elected to take corrective action. As GAO summarized, the corrective action would include “conducting an inquiry into the protest allegations and reviewing the evaluation and award decision to determine what actions were warranted.” Based upon its review of the record, MDA concluded a new award was necessary. To facilitate this, offerors were instructed to submit final proposal revisions to MDA or confirm that no such changes were necessary.

Kord timely submitted final proposal revisions. After preliminary reviews, MDA concluded that Kord’s proposal was not among the most highly rated; therefore, Kord’s proposal was excluded from the competitive range, and eliminated from further competition. When notifying Kord of its elimination, MDA explained that Kord’s proposal had received low marks under the Technical and Contract and Program Management factors—even lower than under the original evaluation. Kord promptly requested a debriefing.

Before the debriefing was held, however, Kord again protested before GAO. According to Kord, its protest was to the terms of the corrective action. Specifically, Kord argued that the evaluation of its final revised proposal demonstrated that MDA had once again failed to award Kord’s proposal the strengths it deserved. As Kord’s protest explained, “MDA’s failure to evaluate technical proposals consistent with the terms of the [s]olicitation indicates that the scope of the [a]gency’s promised corrective action fails to remedy the allegations in Kord’s protest[], and therefore, MDA’s corrective action was inadequate and should be re-conducted in a manner that remedies the concern that caused the agency to take corrective action.”

In response, MDA argued Kord’s protest should be dismissed because it did not meet GAO’s strict timeliness requirements. In fact, the procedural posture of Kord’s protest invoked two distinct bid protest timeliness concepts.

First, MDA argued that Kord’s protest was not of the corrective action, but of the scores it received during the reevaluation. Thus, Kord’s protest did not relate back to the earlier corrective action, but was rather a run-of-the-mill evaluation challenge.

MDA’s argument relied on GAO’s bid protest regulations, which state that where a debriefing is required and requested, “the initial protest shall not be filed before the debriefing date offered to the protester[.]” 4 C.F.R. § 21.2(a)(2). It was undisputed by the parties that here a debriefing was required. Since Kord had immediately requested a debriefing after being notified of its elimination, its filing of a protest with GAO before the debriefing was provided rendered the protest premature.

Second, MDA further argued that even if the protest was a challenge to the corrective action, any such change would have needed to be protested prior to the deadline for final proposal revision submission. According to MDA’s argument, since Kord had waited until after proposal reevaluate was complete, any challenge to the corrective action was untimely.

MDA’s argument relied on a string of GAO decisions that have likened challenges of corrective actions to challenges of solicitation terms. MDA’s challenge then leveraged GAO’s timeliness regulations. According to GAO’s regulations, “[i]n 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.” 4 C.F.R. § 21.2(a)(1). Thus, even if Kord was protesting was the corrective action steps, its protest would still be untimely because the corrective action was akin to a solicitation modification that needed to be challenged prior to proposal resubmission.

GAO agreed with MDA on both counts. First, over the strenuous objection of Kord, GAO found that:

Kord is alleging that the agency’s evaluation of Kord’s November 2019 [Final Proposal Revision], conducted as part of the corrective action, failed to follow the solicitation’s evaluation criteria in the same way that the agency evaluated Kord’s initial proposal. While Kord claims that the evaluation results simply demonstrate that the agency’s scope of corrective action was improper because it did not “remedy the allegations in Kord’s protest[],” in our view, Kord’s protest is a direct and straightforward challenge to the agency’s evaluation of Kord’s November 2019 Final Proposal Revision.

Interpreted as a challenge to its most recent evaluation, Kord’s protest was clearly premature. Despite requesting a debriefing, Kord protested before GAO prior to the debriefing. This clearly violated GAO’s bid protest regulations, resulting in a premature protest.

But GAO did not stop there. In a footnote, GAO also weighed whether Kord’s protest would have been timely as a challenge to the corrective action, and similarly found it wanting. After confirming that challenges to proposed corrective actions are tantamount to protests of a solicitation’s terms, GAO held that “[t]o the extent that Kord believed that the agency’s stated intentions for corrective action failed to do enough to correct the alleged errors in the initial procurement, it should have filed a protest prior to the deadline for submission of [Final Proposal Revisions].” Thus, even if construed as a challenge to the terms of the Solicitation, Kord’s protest would have still been untimely.

Consequently, GAO dismissed Kord’s protest as untimely without resolving any of the factual arguments raised by Kord.

Kord’s protest is an excellent example of a GAO bid protest timeliness conundrum, where any protest would be simultaneously premature or too late. On one hand, Kord sat on its rights to challenge the scope of DMA’s proposed corrective action. On the other hand, it acted too quickly filing a protest raising issues with the new evaluation and award. Thus, Kord has the unpleasant distinction of being a protester who was both too early and too late.