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Timeliness of Bid Protests

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Centre Law & Consulting

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By Tyler Freiberger 

Untimeliness is one of the most common reasons protests of government solicitations and awards before the Government Accountability Office (“GAO”) and The Court of Federal Claims are dismissed. The accompanying chart describes the somewhat harsh and complex rules required for filing before each body. For protests on how a solicitation is written, a contractor must protest simply before the bids are made. But other protests have strict timing demands measured from when the basis for the protest “is known or should have been known.” 4 C.F.R. 21.2. The definition of this phrase has been stretched repeatedly to include situations that would likely surprise unwary contractors.

Last year, the GAO decided VMD Systems. The merits of the protest are not particularly interesting, but the decision does illustrate how liberally the GAO is willing to interpret “should have known.”  In VMD Systems, the contractor was excluded from the competitive range of a NASA contract. Hoping to learn as much as possible for why the award would go to another, the contractor elected to receive a debriefing from the government agency after the award was made, rather than a debriefing only on why it was excluded. After the debriefing, VMD protested its exclusion from the process claiming it was held at a higher standard than others. No dice. The GAO ruled that because VMD could have learned the basis of their protest by electing to take the earlier debriefing option, waiting until after VMD actually knew of the basis was untimely, and therefore the protest was dismissed.

More recently, the Court of Federal Claims used similar logic to that applied by the GAO in VMD Systems. In Sonoran Technology, the Court of Federal Claims considered an odd set of events where one contractor, Sonoran, won the award, faced two different protests, lost the protest and then ultimately the award to a competitor.  As the original awardee, Sonoran had the right to intervene in the original protests but chose not to. When the award was eventually given to the competitor, Sonoran filed a protest of its own through a complaint to the Court of Federal Claims.  The court dismissed the complaint as untimely under the same reasoning used in VMD Systems; had Sonoran exercised the right to intervene in the original protests, it would have learned the basis for the complaint to the Court of Federal Claims much earlier therefore that is the date where the timeliness clock starts.

So, what can a contractor do to protect his or her rights? The accompanying chart provides a summary of important rules and procedures required to protest before the GAO and the Court of Federal Claims. But as shown here, the deciding bodies often interpret the rules to require contractors to aggressively seek out any information that could support a protest and act immediately.

 

 

 

Forum

 

 

Timeliness

 

 

Performance Stay

 

 

Task Order/IDIQ

 

 

Filing Fees

 

 

Time Frame for Decision

Government Accountability Office (GAO) Protest based upon improprieties in a solicitation: Must be filed prior to the time set for submission of initial proposals.

 

All other protests: Must be filed not later than ten days after the basis of the protest is known or should have been known.

 

Debriefing exception: protests challenging a procurement conducted on the basis of competitive proposals under which a debriefing is requested and, when requested, is required. In such cases, the initial protest shall not be filed before the debriefing date offered to the protester, but shall be filed not later than ten days after the date on which the debriefing is held.

 

 

Pre-award protest: When the agency has received notice from the GAO of a protest, the Agency must delay the award.

 

Post-award protest: An automatic stay applies if the protest is filed within five days of a requested and required debriefing, or, if no debriefing was requested and required, within ten days of contract award provided that the GAO notifies the agency within that time frame.

The GAO only has jurisdiction over civilian agency task order awards valued over $10 million.

 

The GAO’s jurisdictional threshold for military agency task order protests is $25 million.

 

Department of Defense task orders issued under civilian agency Government Wide Acquisition Contracts (GWACs) are subject to the $10 million threshold applicable to civilian task order awards.

 

There is no minimum value dollar threshold for Federal Supply Schedule (FSS) contracts.

Currently none. GAO will be implementing a $350 filing fee in the future. GAO shall issue a decision on a protest within 100 days after it is filed.
Forum Timeliness Performance Stay Task Order/IDIQ Filing Fees Time Frame for Decision
Court of Federal Claims (COFC) Pre-award protest: No specific time limits but errors apparent on the face of the solicitation must be protested prior to the time set for submission of initial proposals.

 

Post-award protest: No specific time limits but serious delay may impact the decision.

No automatic stay applies at the COFC. Instead, the protester must seek a preliminary injunction. The COFC has jurisdiction over task order protests only where the protester alleges an increase in scope, period, or maximum value of the contract under which the order is issued or where a protest of an order valued in excess of $10 million (civilian task orders)/$25 million (military task orders). $350. No set time frame for decision but the court’s practice is to expedite protest cases to the extent practicable and to conduct hearings on motions for preliminary injunctions at the earliest practicable time.

 

About the Author:

Tyler Freiberger Headshot | Centre Law & Consulting in Tysons, VA Tyler Freiberger
Associate Attorney

Tyler Freiberger is an associate attorney at Centre Law & Consulting primarily focusing on employment law and litigation. He has successfully litigated employment issues before the EEOC, MSPB, local counties human rights commissions, the United States D.C. District Court, Maryland District Court, and the Eastern District of Virginia.

 

 

The post Timeliness of Bid Protests appeared first on Centre Law & Consulting.


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