A GAO Reminder: Know Your Protest Filing Deadline

One of the first questions a contractor must ask itself before filing a bid protest with the GAO is whether its protest would be timely filed. But as a recent GAO decision highlighted, the answer to that question might not be so clear.

Contrary to a common misconception, a protest is not always timely if filed within 10 days of a debriefing. As one prospective protester learned, if the debriefing is not “required” under applicable law, a GAO protest filed within 10 days of a debriefing might be untimely.

GAO regulations set specific (and strict) protest filing deadlines. Protests relating to improprieties in the solicitation itself, for example, must be filed before the bid opens or the time set for receipt of initial proposals. 4 C.F.R. § 21.2(a)(1). Protests relating to issues other than alleged improprieties in a solicitation must usually be filed within 10 days after the basis of the protest is known or should have been known; but in the case of a competitive procurement where a debriefing is both required and requested, a protest must be filed no later than 10 days after the date of the debriefing. 4 C.F.R. § 21.2(a)(2).

To know which deadline applies, therefore, depends on whether the procurement is one in which the government would be required to provide a debriefing, if requested. This, of course, just begs another question:  when is a debriefing required, if requested? It depends on the contract. Debriefings are generally required, for example, in negotiated procurements under FAR part 15. There may be other instances where a debriefing is required, thus triggering the correlating deadline. However, some types of procurements do not involve “required” agency debriefings under the FAR.

These differing deadlines can certainly cause confusion, as demonstrated in the GAO’s recent decision in Gorod Shtor, B-411284 (May 22, 2015). The Gorod Shtor case involved a State Department procurement for commercial items (drapery making and installation) conducted under FAR part 13. Award was to be made to the lowest-priced, technically acceptable vendor.

Gorod Shtor, a company based in Moscow, submitted a proposal. After evaluating competitive proposals, the agency notified Gordo Shtor that award had been made to a competitor. The agency informed Gorod Shtor that its proposal had been evaluated as technically unacceptable. Additionally, the competitor’s proposal was lower priced.

After receiving notice that it was the unsuccessful offeror, Gorod Shtor requested and received an explanation from the agency regarding its basis of the award. Still unhappy, it filed a post-award protest within 10 days after it received the agency’s explanation. Gorod Shtor alleged that the competitor’s proposal should have been evaluated as technically unacceptable.

Gorod Shtor’s protest was dismissed as untimely. In so deciding, GAO noted that the explanation that Gorod Shtor received was not a debriefing, as a debriefing requires certain information be provided (beyond a mere explanation of the basis for award).

Further, the GAO wrote that under FAR Part 13, procuring agencies are not required to provide debriefings to unsuccessful offerors. “In sum,” the GAO wrote, “while a debriefing could be provided in the procurement here, it was not required, and what the agency was required to provide was not a debriefing.” The GAO continued, “[a]s Gorod Shtor was aware of its challenge to the technical acceptability of OOO Premier Design by March 13, and did not file it with our office until March 27 (and the debriefing exception is inapplicable here), that challenge is untimely.” The GAO dismissed Gorod Shtor’s protest.

Even the most promising protest will fail if it isn’t timely filed. As Gorod Shtor demonstrates, the GAO bid protest deadlines can be complex and may turn on technical details, such as whether a debriefing was “required.” Knowing those technical details may mean the difference between a successful protest and a dismissal.

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