GAO: Protest of Exclusion From Competitive Range Untimely After Award

A protester’s failure to timely file its bid protest at GAO is almost always certain to lead to the dismissal of its protest. But knowing when the clock starts running for an offeror to file its protest isn’t always clear.

This uncertainty recently tripped up a would-be protester seeking to challenge its exclusion from the competitive range—because that offeror failed to request a pre-award debriefing, its attempt to protest its exclusion following the award and a post-award debriefing was untimely.

At issue in VMD Systems Integrators, Inc., B-412729 (Mar. 14, 2016) was a NASA solicitation for information technology, information management, communications, and multimedia services. After NASA’s source evaluation board identified several significant weaknesses with VMD’s proposal, it excluded VMD from the competitive range.

VMD was notified of this exclusion on December 1, 2015, and was advised that requests for debriefings would be handled by NASA in accordance with FAR 15.505 (relating to pre-award debriefings) and 15.506 (post-award debriefings). VMD was given the option of requesting either a pre-award debriefing or a post-award debriefing.

VMD elected for a post-award debriefing, thinking that a post-award debriefing would provide more substantive information so as to enable it to “improve its performance in future procurements.” So, following the February 1, 2016 notice of award to a third party, NASA provided VMD with a post-award debriefing on February 4. The debriefing contained debriefing slides, the source selection decision document (which discussed the strengths for the proposals that were included in the competitive range), and the source evaluation board’s findings.

On February 11, VMD filed a GAO bid protest challenging its exclusion from the  competitive range. VMD claimed disparate treatment by NASA, alleging that its proposal was held to a higher standard because other offerors received strengths that VMD did not.

NASA moved to dismiss the protest as untimely. GAO agreed that VMD’s protest was untimely writing: “As stated in our timeliness rules, a post-award debriefing protest will be considered timely if filed as late as 10 days after the debriefing, even as to issues that should have been known before the debriefing, if that debriefing is ‘required.’”

VMD’s post-award debriefing was not required—the Competition in Contracting Act requires that a post-award debriefing be given to an offeror excluded from the competitive range only if that offeror requested and was refused a pre-award debriefing. VMD, though, elected not to receive a pre-award debriefing; it requested only a post-award debriefing.

Because the contracting officer did not refuse to provide a pre-award debriefing, the post-award debriefing was not “required.” VMD’s ten-day clock to file its protest began running when it learned of its exclusion from the competitive range, on December 1.

Arguing against this application of GAO’s timeliness rules, VMD said that it first learned of the protest bases from the source selection decision, which could not have been obtained via a pre-award debriefing. GAO said that this argument missed the point: had VMD requested a pre-award debriefing, it would have learned the results of the evaluation of its proposal and the basis for its exclusion from the competitive range. It could have then filed a timely protest relating to that exclusion. But by instead electing to receive a post-award debriefing, VMD “effectively chose not to protest its exclusion from the competitive range. After the post-award debriefing, since its proposal was excluded, VMD is not an interested party for purposes of challenging the evaluation of other offerors, or the award decision.”

GAO thus dismissed VMD’s untimely protest.

Understanding GAO’s bid protest timeliness regulations is crucial—misunderstanding them has caused countless bid protests to be dismissed. VMD Systems Integrators underscores this point: an offeror who is excluded from the competitive range but postpones its debriefing until after award is likely to have its protest dismissed as untimely.

Leave a Reply

Your email address will not be published. Required fields are marked *