It is safe to say that every federal contractor, at one time or another, has felt the terms of a solicitation were unfair or otherwise didn’t make sense. Federal agencies are comprised of people, and people make mistakes. Sometimes, then, mistakes make it into the solicitation. Unfair or erroneous terms in a solicitation are a valid grounds for a protest, but it is crucial to know when such a protest is timely. In most cases, if the time for bids has passed, any protest of the terms of the solicitation, be it at GAO or the Court of Federal Claims, will be untimely. There are rare exceptions, but, in general, a protest of terms of the solicitation must be brought before bids are due to be timely. Untimeliness equals dismissal. In this post, we will explore a protest GAO dismissed for this very reason.

In Quantum Ventura, Inc., B-423603 (Comp. Gen. Jun. 23, 2025), the protester, Quantum Ventura, Inc. (QV), bid on a broad agency announcement (BAA) by the Department of Defense (DoD) for the Small Business Technology Transfer (STTR) program. For this sort of work, it is typical that the offeror will work with a non-profit research or educational institution. Further, work in the STTR is performed in phases. In the BAA, DoD expressly required that offerors perform at least 40% of the work and that at least 30% of the work be performed by a non-profit institution. In a later statement, DoD stated that proposals that do not comply with the requirement that 40% of the work be performed by the offeror and 30% be performed by the institution would be deemed not responsive.

The cost volume template for the procurement provided several worksheets, four of which were a materials worksheet, equipment worksheet, travel worksheet, and Other Direct Costs (ODC) worksheet. The first worksheet, a “general” worksheet, stated “ENTER FULLY LOADED BURDEN RATES EXCEPT FOR EQUIPMENT AND TRAVEL WHERE NO PROFIT OR INDIRECTS SHOULD BE INCLUDED.”

QV submitted a proposal for $209,757, of which, 51% was to go to the institution and 49% to QV. However, the cost volume template QV submitted reflected a total proposed cost of $150,626. QV did not propose costs for materials, equipment, travel, and ODCs. With the costs proposed in the template, then, QV would only perform 31.5% of the work. DoD informed QV that its proposal was non-compliant, and QV protested.

In QV’s protest, it argued that QV complied with the requirements and that the issue was with deficiencies in the agency’s cost spreadsheet. It claimed that the spreadsheet omitted columns necessary for accurately representing labor overhead, general & administrative (G&A) expenses, and profit. The agency moved to dismiss the protest as an untimely challenge to the terms of the procurement.

QV argued that the absence of certain items in the cost template was a latent ambiguity, and that it was reasonable to break down its indirect costs elsewhere in the proposal. It stated that in most STTR competitions, offerors will itemize direct labor and material costs as well as indirect costs like overhead, G&A, and profit. As such, not having sections for overhead, G&A, and profit were unusual. QV further argued that the solicitation did not define “fully loaded” or prohibit offerors from separately identifying indirect costs. As such, QV understood the term to mean something more in the custom of STTR, and didn’t realize it had to put its indirect costs and profit in the labor rate figures until in received the rejection notice.

GAO was not sympathetic to QV’s argument. Citing to 4 C.F.R. § 21.2(a)(1), GAO observed that its “timeliness rules specifically require that a protest based upon alleged solicitation improprieties that are apparent prior to the closing time for submission of proposals must be filed before that time.” In other words, if you think there’s something wrong with the solicitation terms, you must protest before the bid deadline.

There is an exception for latent ambiguities, that is, where terms in the solicitation are ambiguous but not obviously so. But here, the terms weren’t ambiguous at all. QV simply didn’t read the BAA as a whole. OV acknowledged that “the cost volume template’s instructions required offerors to submit fully loaded burden rates and also acknowledge[d] that the template did not include columns for offerors to enter indirect costs such as overhead, G&A, and profit.” GAO observed that, looking at the instructions as a whole, “the instruction to propose fully loaded rates coupled with the templates’ distinct lack of columns for entry of indirect costs, clearly indicated that offerors were to include all indirect costs in their proposed labor rates–i.e., to submit fully loaded rates.” As such, there was no ambiguity. GAO also observed that even were it ambiguous, QV failed to breakdown its indirect costs anywhere else in its proposal.  Even if its interpretation that offerors could detail their indirect costs was found reasonable, it wouldn’t matter as QV didn’t do that.

Key Lesson

The key lesson is one we can’t emphasize enough: If you have an issue with the terms of a solicitation, you must file your protest by the deadline for submissions. If you think the terms are ambiguous, file your protest before proposals are due. If you think the terms are improper, file the protest before proposals are due.  This isn’t just the case with COFC. The Court of Federal Claims applies the same rule. Blue & Gold Fleet, L.P. v. United States, 492 F.3d 1308 (Fed. Cir. 2007). There are exceptions but they really rely on you being unable to know about the issue prior to the bid submission deadline. Bottom line: If you have an issue with the terms of a solicitation, get your protest in before bids are due. If that time has passed, it will be highly difficult to make such a protest unless you can really show you couldn’t have known about the issue at the time bids were due.

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