Tag Archives: TImeliness

The Brooks Act, Debriefings, and GAO Bid Protests

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Remember 80s band Nu Shooz?  No?  Even if the name doesn’t right a bell,  I can almost guarantee that you’ve heard the band’s one hit, “I Can’t Wait.”   Go on, take a listen on YouTube, and you’ll see that  I’m right.

While you are busy bopping to that slice of 80s retro-ness, it’s worth knowing that “I Can’t Wait” is the rule when it comes to GAO bid protests based on architect and engineering procurements conducted under the Brooks Act.  According to a recent GAO decision, unlike with a typical competitive procurement under FAR Part 15, an unsuccessful offeror cannot wait to file a GAO bid protest regarding matters of which it is already aware until after it receives a debriefing.  Wait until after the debriefing, and the GAO might dismiss the protest as untimely–just like it recently did in the case of one unlucky protester.

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Three Common SBA Size Protest Mistakes

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Nobody’s perfect, the old saying goes.  While I might beg to differ in the case of my daughter (who, in my unbiased opinion, is perfectly adorable), the saying definitely holds true when it comes to SBA size protests.

I read every published SBA Office of Hearings and Appeals decision (I’m sure you are jealous), and I see many of the same mistakes repeated over and over,  Often, these mistakes cost the protester its chance at a successful size protest.

So, without further ado, here are my top three most common SBA size protest mistakes.

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NAICS Code Appeals: A Quick Timeliness Reminder

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If you Google the simple phrase “10 days,” the top result is the IMDb page for the movie How to Lose a Guy in 10 Days.   I haven’t seen this 2003 Matthew McConaughey/Kate Hudson romantic comedy, and Lord willing, never will (though I recall that my 80-something grandmother thoroughly enjoyed it).

Even though NAICS code appeals didn’t pop up first on the Google rankings, actors with a penchant for the Texas Longhorns aren’t the only thing that can be lost in 10 days.   If you want to file a NAICS code appeal with the SBA Office of Hearings and Appeals, act quickly.  Under the SBA OHA regulations, NAICS code appeals must be filed and served within 10 days after the issuance of the solicitation.  Any later, and you will lose your right to appeal, as one would-be appellant recently learned.

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Debriefings and SBA Size Protests: Sorry, No Extension

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Today’s public service announcement comes to us courtesy of the SBA Office of Hearings and Appeals.  Here it is: asking for and receiving a debriefing does not extend the deadline to file a SBA size protest.  Asking for a debriefing may extend the time frame for filing a GAO bid protest but does not extend the five-business-day period for filing a SBA size protest.

Case in point: the decision of SBA OHA in Size Appeal of Garco Construction, Inc., SBA No. SIZ-5308 (2011).  In that case, a small business learned of award to a competitor on September 26, but waited until after it received its debriefing on October 21 to file its SBA size protest.  The small business argued that its size protest should be considered timely, because it has no knowledge of the grounds of protest until after the debriefing.

Nice try.  SBA OHA made short work of this argument, stating “that a protester did not learn of the grounds for its protest until the debriefing is no basis for extending the deadline for filing a protest.”  SBA OHA held that the SBA Area Office had properly dismissed the size protest as untimely.

And that concludes today’s public service announcement for small government contractors.  As they say on NBC, “The More You Know.”

GAO Bid Protest Timeliness: Read That Government Email Right Away!

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GAO bid protest timeliness can be one of the most frustrating aspects of GAO bid protests.  Typically, unless the contractor receives a debriefing, any post-award protest must be filed within ten days after the contractor knew or “should have” known of the basis of protest.

The “should have known” portion of the GAO bid protest timeliness rule has tripped up contractors for years, and continues to do so.  In Golight, Inc., B-401866 (Sept. 10, 2009), the GAO held  that a disappointed offeror “should have” known of its basis for protest on the day the contractor received an email—even though the recipient didn’t open the email until several days later.

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GAO Bid Protests: Email Filings Must Use Correct Address

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If there’s anything worse than losing a GAO bid protest, it’s losing a GAO protest on a technicality.

One of the many conveniences GAO offers protesters is the ability to file protest-related documents by email.  But protesters must timely file their documents at the email address provided under the GAO’s regulations—protests@gao.gov–or their filings will be disregarded.  As one protester learned the hard way, even emailing the document to the individual email address of the GAO attorney deciding the protest isn’t a substitute for using protests@gao.gov.

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SBA Size Protests, Timeliness, and After Hours Notifications

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An SBA size protest on a negotiated procurement must be submitted within five business days “after the contracting officer has notified the protester of the identity of the prospective awardee.”  But what happens if the contracting officer’s notice arrives after normal working hours?  Does the clock start ticking anyway?

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