In a recent decision, GAO dismissed a protest challenging the USDA’s issuance of a lease contract as untimely where the protester’s communications with the agency did not constitute an agency-level protest, and the protest was filed more than 10 days after the notice that formed the basis of its protest was received by the protester.
In October 2019, the USDA issued a 20-year request for lease proposal (RLP) for office space in Red Bluff, California to be awarded to the lowest-priced, technically acceptable offer submitted, which included minimum requirements for office space square footage and parking spaces. Silver Investments, Inc., the protester, submitted a timely proposal, but was informed by the government in March of 2020 that its initial offer did not meet the minimum square footage requirements for office space. The agency requested a revised proposal within five days, and informed Silver Investments that if no response was received within five days, the agency would assume the protester no longer had any interest in pursuing the procurement.
Silver Investments did not submit a revised proposal, but instead sent several emails to the agency between March and June contending that it met the requirements set forth in the request and voicing concerns about the other offeror’s properties.
The agency informed Silver Investments on July 29 that award of the lease had been made to another offeror. In reaction, Silver Investments sent an email on August 5 to contracting personnel at the USDA, indicating its concern with the USDA’s decision to award the lease to the awardee. It also listed all the ways the property failed to meet the solicitation requirements, including that its rental space did not meet the requirements of the solicitation. Silver Investments also informed the agency it “will be taking legal action because [the agency] did just what [the protester] thought [it] would do, put out minimum requirements then act like they don’t matter and lease ground that does not meet the requirements,” and ended its email by stating, “be advised that I will be filing [an] action and naming the people in the fraud.”
On August 6, Silver Investments also left several voicemails for one of the contracting officers, one of which stated that the awardee’s property did not meet the solicitation requirements because there were not enough parking spaces and the property was in a floodplain. Silver Investments also noted that it would be willing to add indoor office space to its property to meet the minimum square footage requirement noted in the solicitation.
In a letter responding to the email and voicemails, the agency let Silver Investments know its correspondence did not comply with bid protest regulations, and specifically identified available avenues through which Silver Investments could seek a remedy for its complaint regarding award of the lease. The avenues included (1) filing an agency-level protest compliant with FAR 33.103 with the applicable contracting officer; (2) filing a bid protest with the Government Accountability Office; or (3) filing a bid protest with the U.S. Court of Federal Claims. The agency concluded the letter by notifying Silver Investments it would not engage in further discussions with the protester with respect to the lease award.
Silver Investments then filed a protest with GAO on August 20, contending that the award was improper because the awardee’s office space did not meet the solicitation’s requirements for parking space.
At GAO, the USDA argued that Silver Investments had been notified on July 29 of the agency’s award of the lease to another firm, but its protest was not filed with GAO within 10 days of notice of the award, which was Monday, August 10. On this basis, the agency requested dismissal from GAO. Silver Investments contended in response that the August 5 email to the agency amounted to an agency-level protest, which would have extended the time for it to file a protest to September 17. In the end, GAO was not convinced by Silver Investments.
Government bid protests have requirements, and that includes agency-level protests. A losing bidder on a government contract cannot effectively protest an award by merely complaining adamantly to the agency why the award was improper. Even eloquent arguments that are persuasive and true, if not in compliance with the regulatory requirements, have no more effect in achieving a legitimate government protest than stepping out your front door and hollering “bankruptcy!” would have in legitimately declaring bankruptcy.
The protest Silver Investments submitted to GAO did not indicate it had previously filed an agency protest, so GAO asked the agency whether Silver Investments had done so. The agency responded that it had not, as none of the correspondence with the agency contained the necessary information required by the FAR 33.103(d)(2)) to be considered an agency-level protest.
Namely, Silver Investments neither requested a ruling by the agency nor identified specific relief requested from the agency. The agency alternatively pleaded that even if the protester’s August 5 email could be characterized as an agency-level protest, Silver Investments’ protest would still be untimely because the agency’s August 7 email would have constituted initial adverse action by the agency. Thus, the agency argued the protester should have filed the protest within 10 days of the August 7 email–on or before August 17. GAO found in favor of the agency.
In its ruling, GAO decision laid out requirements for agency-level protests regarding both timeliness and substance. Substantively, the FAR requires that an agency-level protest include, among other things, a request for a ruling by the agency and a statement requesting a form of relief. FAR 33.103(d)(2)(v)-(vi). In a previous decision, GAO found that although a letter or email does not have to state explicitly that it is intended as a protest for it to be so considered, it must, at least, express dissatisfaction with an agency decision and request corrective action. GAO also noted, “[o]ur Office has consistently stated that, to be regarded as an agency-level protest, a written statement must convey the intent to protest by a specific expression of dissatisfaction with the agency’s actions and a request for relief.
In contrast, a letter that merely expresses a suggestion, hope, or expectation, does not constitute an agency level protest. GAO also reaffirmed that a letter that highlights an aggrieved offeror’s intention to file a protest at some future date weighs against characterizing the letter as an agency-level protest. Further, an agency-level protest must be a “written statement,” thus phone calls or voicemails will not suffice.
As for timeliness, the deadline for protests is 10 days. Under the rules, 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, of the basis for protest, whichever is earlier. However, if there had been a legitimate agency-level protest, “any subsequent protest to GAO must be filed within 10 days of actual or constructive knowledge of initial adverse agency action.” So, if Silver Investments’ email qualified as an agency-level protest, GAO would also need to determine whether the protest was timely filed within the 10-day timeline from the agency’s initial adverse action of its email response on August 7.
GAO determined that Silver Investments’ August 5 email to the agency did not constitute an agency-level protest, because it did not satisfy the requirements necessary for it to be a protest under the FAR. GAO explained that while Silver Investments expressed dissatisfaction with the agency’s award of the lease to another firm in the email, it did not request a ruling or any specific relief from the agency, as required by the FAR 33.103(d)(2)(v)-(vi). Also, the email indicated only that the protester would take legal action at some future date.
Since the email did not qualify as an agency-level protest, pursuant to 4 C.F.R. § 21.2(a)(2), Silver Investments was required to file its protest with GAO no later than 10 days after it knew or should have known the basis of protest, which in this case, was on July 29, 2020, when the agency notified Silver Investments of its decision to make the award to another firm. But the protest was not filed until August 20, 2020–more than 10 calendar days after the protester was notified that award was made to another contractor. Therefore, GAO found the protest was untimely.
Even assuming for arguments’ sake that the August 5 email was an agency-level protest, GAO found Silver Investments’ protest to GAO was still untimely. GAO found the agency’s August 7 letter to Silver Investments clearly notified it that, among other things: (1) the protester’s emails and phone calls to the staff did not comply with any bid protest regulations; (2) there were three available remedies to the protester, one of which included filing an agency-level protest with the contracting officer; and (3) agency personnel did not intend to engage in further discussions with the protester regarding the lease award.
Based upon this finding, GAO decided the agency’s letter indicated clearly that it did not consider any correspondence from Silver Investments to constitute an agency-level protest, as it did not comply with the applicable regulations. Moreover, GAO noted the agency informed the protester that it could file an agency-level protest consistent with the requirements of FAR 33.103. Based on these facts, even viewing Silver Investments’ emails and phone calls as equivalent to agency-level protests, GAO found that the agency had taken adverse action in response to any such agency-level protest. Therefore, Silver Investments’ protest would have to be filed by August 17, 10 days from the August 7 letter. Because Silver Investments did not file its protest until August 20, GAO ultimately found the protest was untimely and dismissed the protest.
The case serves as a blunt reminder of how important it is to meticulously follow the regulations surrounding protests, because the government certainly will. Here, it cost a disappointed bidder a protest, maybe even a bid. And a lack of knowledge of the rules is no defense.
Silver Investments asserted to GAO: “do they really expect anyone filing a protest for misconduct like this, to know all the regulations.” Yes, GAO does. GAO highlighted that a protester’s professed lack of actual knowledge of the regulations is not a defense to dismissal of its protest as untimely. Prospective contractors are on constructive notice of GAO’s regulations, because they are published in the Federal Register and the Code of Federal Regulations.
Here, had the August 5 email qualified as an agency-level protest, it would have been timely under GAO’s 10-day timeline. But because the protest did not meet the requirements, the protest was dismissed.
Questions about this post? Email us or give us a call at 785-200-8919.
Looking for the latest government contracting legal news? Sign up for our free monthly newsletter, and follow us on LinkedIn, Twitter and Facebook.