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4 CFR 21.2:  Timeliness of Protest 

Comptroller General - Key Excerpts

New Upon receipt of PennaGroup's protests, our Office prepared and distributed development letters to the parties. The development letters stated that the due date for the agency to file its reports in response to the protests was July 26, and further advised that PennaGroup was "required to submit written comments in response to the report." Development Letter from GAO to Protester, June 29, 2017. The development letter further expressly stated "[w]ritten comments must be received in our Office within 10 calendar days of your receipt of the report--otherwise, we will dismiss your protest." Id. (emphasis in original).

DHS filed its agency reports on July 26, and PennaGroup specifically acknowledged its receipt of the reports on that day. E-mail from Protester to Agency, July 26, 2017 (3:44 p.m.); E-mail from Protester to Agency, July 26, 2017 (3:45 p.m.). PennaGroup's comments were therefore due by the close of business on August 7; however, the firm did not file comments or request an extension of time to file comments by close of business that day. On August 8, our Office asked PennaGroup to confirm whether it had filed comments; in response, the protester stated that "[o]ur legal team has reviewed the [agency's] response and finds no new legal or factual arguments not fully set forth in length in our original Bid Protest." E-mail from Protester to GAO, Aug. 8, 2017 (10:43 a.m.); E-mail from Protester to GAO, Aug. 8, 2017 (10:46 a.m.).

On August 9, the agency filed requests for dismissal of the protests citing PennaGroup's failure to file comments. In response, PennaGroup acknowledged that its comments were not timely filed, but stated that it would have filed its comments by the deadline but for technical difficulties (i.e., internet service disruption) resulting from inclement weather. E-mail from Protester to GAO, Aug. 9, 2017 (2:10 p.m.); E-mail from Protester to GAO, Aug. 9, 2017 (2:11 p.m.). The protester also states that it attempted to reach the GAO attorneys assigned to the protests regarding the late filing of comments.[2] Id.

Bid protests are serious matters which require effective and equitable procedural standards to assure both that parties will have a fair opportunity to present their cases, and that protests can be resolved in a reasonably speedy manner. Reynolds Bros. Lumber and Logging Co.--Recon., B-234740.2, May 16, 1989, 89-1 CPD ¶ 468 at 2-3. The filing deadlines in our Regulations are prescribed under the authority of the Competition in Contracting Act of 1984; their purpose is to enable our Office to comply with the statute's mandate that we resolve protests expeditiously. See 31 U.S.C. § 3554(a); Keymiaee Aero-Tech, Inc., B-274803.2, Dec. 20, 1996, 97-1 CPD ¶ 153 at 1. A protester is required to file comments on an agency's report responding to the protest. 4 C.F.R. § 21.3(i). To avoid delay in the resolution of protests, our Bid Protest Regulations provide that a protester's failure to file comments within 10 calendar days "shall" result in dismissal of the protest except where GAO has granted an extension or has established a shorter period. Id. § 21.3(i). But for this provision, a protester could idly await receipt of the report for an indefinite time, to the detriment of the protest system and our ability to resolve the protest expeditiously. Prio-Leau Culinary Servs., Inc.--Recon., B-236373.6, Jan. 23, 1990, 90-1 CPD ¶ 90 at 2. Accordingly, we dismiss PennaGroup's protests because it failed to file comments by August 7, the due date for its comments on the agency report.

To the extent PennaGroup now requests that this Office provide an extension of time for it to file comments, we note that our Bid Protest Regulations do not allow for post-deadline extensions. As noted above, a protest will be dismissed unless our Office granted an extension prior to the deadline. 4 C.F.R. § 21.3(i). In this case, our Office did not grant an extension prior to the close of business on August 7, and therefore, we cannot provide PennaGroup with more time to file its comments, even if it experienced technical difficulties. Since PennaGroup had an opportunity to file its comments, as well as an opportunity to request an extension of time to file its comments, allowing PennaGroup to file its comments late would be inconsistent with our purpose of providing a fair opportunity for protesters to have their protests considered without unduly disrupting the procurement process.  (PennaGroup, LLC B-414840.2, B-414841.2: Aug 25, 2017)

As a preliminary matter, the agency and intervenor argue that IRT’s protest regarding the price realism evaluation of MetroStar is untimely because it was not filed within 10 days of when IRT knew of should have known of its basis of protest (i.e., the award notice provided to IRT) and because the debriefing exception to our timeliness rules is inapplicable to, as here, FSS procurements. As detailed below, we agree.

Our Bid Protest Regulations contain strict rules for the timely submission of protests. These timeliness rules reflect the dual requirements of giving parties a fair opportunity to present their cases and resolving protests expeditiously without disrupting or delaying the procurement process. The MIL Corp., B-297508, B-297508.2, Jan. 26, 2006, 2006 CPD ¶ 34 at 5; Dominion Aviation, Inc.--Recon., B-275419.4, Feb. 24, 1998, 98-1 CPD ¶ 62 at 3. As relevant here, our Bid Protest Regulations require that protests not based upon alleged improprieties in a solicitation:

shall be filed not later than 10 days after the basis of protest is known or should have been known (whichever is earlier) with the exception of 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, with respect to any protest ground basis which is known or should have been known either before or as a result of the debriefing, the initial protest shall not be filed before the debriefing date offered to the protester, but shall be filed not later than 10 days after the date on which the debriefing is held.

4 C.F.R. § 21.2(a)(2).

Our Office has also previously determined that FSS procurements conducted pursuant to FAR subpart 8.4 are not procurements conducted on the basis of competitive proposals, and that the debriefing exception to our timeliness rules does not apply to such procurements. The MIL Corp., supra, at 6; see Comfort Inn South, B-270819.2, May 14, 1996, 96-1 CPD ¶ 225 (equating the term “competitive proposals” as set forth in 10 U.S.C. § 2304(a)(2)(B) with negotiated procedures); see also Systems Plus, Inc. v. United States, 68 Fed. Cl. 206, 209-210 (2005) (holding that a procurement under the FSS program pursuant to FAR Subpart 8.4 was not conducted on the basis of “competitive proposals,” even though it may involve the use of enhanced competitive procedures). Because the FSS buy here was not a procurement conducted on the basis of competitive proposals, the exception to our timeliness rules allowing protests to be filed within 10 days of a debriefing does not apply.

In its response to the request for dismissal, IRT argues that its protest was timely filed because it could not have known the basis of its price realism protest allegation until receiving the March 1 responses to debriefing questions, and properly filed its protest within 10 calendar days of that time. We disagree. As set forth above, IRT’s protest here is based on a comparative assessment of MetroStar’s price to its own--information which IRT knew from the award notice. The record also reflects that IRT’s discussion questions and USMC’s answers thereto contained no reference to price realism--including the specific questions and answers to which IRT first refers in its response to the dismissal request. AR, Tab 16, Agency Debriefing Answers, at 3-4. In sum, IRT’s assertion that the agency failed to properly evaluate MetroStar’s unrealistic price was based on information IRT knew of prior to its debriefing, and did not file its protest within the required time.

IRT also argues that its price realism evaluation challenge is timely because the USMC conducted the procurement here pursuant to FAR Part 15. In support thereof, the protester asserts the following: (1) nowhere does the solicitation mention FAR subpart 8.4; (2) the agency made award on an LPTA basis, which is described in FAR Part 15; and (3) the agency stated that it was providing IRT with a debriefing “pursuant to Federal Acquisition Regulation [§] 15.506(b).” IRT Dismissal Request Response, at 2, citing AR, Tab 14, IRT Post-Award Debriefing. We disagree.

First, there is no dispute that the ELS2 support services procurement here was restricted to FSS Schedule No. 70 contract holders, and that the procedures set forth in FAR subpart 8.4 apply to “individual orders for supplies or services placed against [FSS] contracts.” FAR § 8.403(a)(1). Likewise, FAR Part 15 “do[es] not apply to . . . orders placed against Federal Supply Schedule contracts . . . .” FAR § 8.404(a). There is simply no requirement that FAR subpart 8.4 be expressly referenced in a solicitation for it to be applicable to FSS orders. See FAR § 8.403. The solicitation also properly included the evaluation criteria on which task order selection would be made, see FAR § 8.405-2(c)(3)(ii), and the fact that the LPTA source selection process is detailed in FAR Part 15 does not alter that this was an FSS procurement. Lastly, a contracting officer’s mischaracterization is not determinative of whether a debriefing is a required one, see MIL Corp., supra, at 7 n.5, nor can it alter the fact that this was an FSS procurement to which the procedures of FAR subpart 8.4, rather than FAR Part 15, applied. See generally Source Diversified, Inc., B-403437.2, Dec. 16, 2010, 2010 CPD ¶ 297 at 5 n.8.  (IR Technologies B-414430, B-414430.2, B-414430.3: Jun 6, 2017)


As a preliminary matter, however, the agency challenges the timeliness of Medfinity’s protest since the protest was filed more than two months after the agency announced its intention to cancel the solicitation. We decline to dismiss the protest on these grounds. In this regard, the record evidences that on May 13, Medfinity sent an email to the CO disagreeing with the agency’s cancellation decision and requesting an independent third party review. See AR, Tab 17, Medfinity Email Chain, at 2-5. Our Office has long held that, to be regarded as an agency-level protest, a written statement need not state explicitly that it is, or is intended to be, a protest, but rather must convey the intent to protest by a specific expression of dissatisfaction with the agency’s actions and a request for relief. Coulson Aviation (USA), Inc., B-411525, B-411525.2, Aug. 14, 2015, 2015 CPD ¶ 272 at 5. Because Medfinity’s May 13 email included both a specific expression of dissatisfaction and a request for corrective action, we find that it constituted an agency-level protest. Since Medfinity filed the instant protest with our Office within ten days of learning, on July 18, that the agency still intended to cancel the solicitation, its protest is timely under our Bid Protest Regulations. 4 C.F.R. § 21.2(a)(3).  (Medfinity LLC B-413450: Sep 9, 2016)


Choctaw argues that, despite the language of the solicitation expressly providing that past performance of the offeror would be viewed more favorably than past performance by a predecessor company, Federal Acquisition Regulation (FAR) § 15.305(a)(2)(iii) prohibited the Air Force from viewing past performance in the manner set out by the solicitation. Protest at 3; Protester’s Comments at 2-3.

In response, the Air Force notes that the RFP specifically provided that “[c]ontracts performed by the company submitting the proposal are viewed more favorably than those performed by predecessor companies and/or key personnel,” RFP at 28, and points out that the firm’s only past performance was by its predecessor, Choctaw Professional Resource Enterprise. AR at 4. Accordingly, the Air Force argues, Choctaw is raising an untimely challenge to the express terms of the RFP, and should be dismissed on that basis. Id. Even if the protest were timely in this regard, the Air Force argues, the evaluation was reasonable because FAR § 15.305(a)(2)(iii) merely advises an agency to “take into account” the past performance by predecessors and key personnel, and does require an agency to give it the same status as past performance of the offeror itself. Id. at 5-6.

We agree with the Air Force. The solicitation here expressly disclosed how the Air Force would view past performance by the offeror versus the past performance of a predecessor firm. An argument that this solicitation language violates the FAR is a challenge to the terms of the solicitation and is, thus, untimely. See Liebert Fed. Sys., Inc., B-274823, Jan. 8, 1997, 97-1 CPD ¶ 45 at 9 (untimely post-award challenge that price evaluation using estimates provided in solicitation was unreasonable); Blue Rock Structures, Inc., B-287960.2, B-287960.3, Oct. 10, 2001, 2001 CPD ¶ 184 at 5 n.5 (untimely post-award challenge that past performance evaluation scheme was disadvantageous to protester). To be timely, a challenge to the terms of a solicitation must be filed before the closing date for the submission of proposals. 4 C.F.R. § 21.2(a)(1); e.g., Logistics Mgmt. Int’l, Inc., B-412837, June 6, 2016, 2016 CPD ¶ ___ at 3-4 (timely pre-proposal protest of solicitation provision that past performance of key personnel would not be considered relevant). Choctaw’s protest was filed after award, making it untimely.

In its comments, Choctaw argues that its protest should nevertheless be considered under the significant issue and good cause exceptions to timeliness. Protester’s Comments at 1. The good cause exception to GAO’s timeliness rules is limited to circumstances where some compelling reason beyond the protester’s control prevents the protester from filing a timely protest, while the significant issue exception is limited to untimely protests that raise issues of widespread interest to the procurement community, and which have not been considered on the merits in a prior decision. Baldt Inc., B‑402596.3, June 10, 2010, 2010 CPD ¶ 139 at 2-3. Choctaw has shown no reason why it could not have challenged the terms of the solicitation before the award, nor has it demonstrated the presence of a significant issue; indeed, as cited above, our Office has addressed FAR § 15.305(a)(2)(iii) in previous decisions.  (Choctaw Staffing Solutions, Inc. B-412152.3: Aug 24, 2016)


Suntek challenges the SBA’s determination that the requirement is exempt from an adverse impact analysis because it is a “new” requirement. The Army and SBA respond that the protest is untimely because Suntek filed its protest more than 10 days after it should have known of SBA’s acceptance of the requirement into the 8(a) program. In this regard, the agencies assert that Suntek knew, or should have known, that SBA had accepted the requirement into the 8(a) program, when it received a copy of the solicitation. Suntek disagrees, arguing that it did not know that the requirement had actually been offered and accepted into the 8(a) program, until it learned that the contract had been awarded. For the reasons discussed below, we conclude that the protest was untimely filed with our Office, and dismiss it on that basis.

GAO’s Bid Protest Regulations contain strict rules for the timely submission of protests. Under these 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. 4 C.F.R. § 21.2(a)(2). Our timeliness rules reflect the dual requirements of giving parties a fair opportunity to present their cases and resolving protests expeditiously without unduly disrupting or delaying the procurement process. Verizon Wireless, B‑406854, B 406854.2, Sept. 17, 2012, 2012 CPD ¶ 260 at 4. Although Suntek’s protest is based upon information contained in the solicitation, we note that the timeliness of the protest is governed by section 21.2(a)(2) of our regulations, which requires that a protest be filed within 10 days after the basis of protest is known or should have been known, rather than section 21.2(a)(1), which concerns alleged improprieties in a solicitation and requires that a protest be filed prior to the time set for receipt of initial proposals, because as previously discussed, Suntek did not receive the RFP until after the closing date for receipt of initial proposals. AR, Tab 14, Protester Email Chain (Sept. 14-17, 2015), at 2; RFP at 1. In this regard, this case is similar to cases where a solicitation defect only became apparent after the closing date for receipt of proposals, and we held that the alleged impropriety had to be protested not later than 10 days after the defect became apparent. See Armorworks Enters., LLC, B-400394, B-400394.2, Sept. 23, 2008, 2008 CPD ¶ 176 at 6; LBM, Inc., B-290682, Sept. 18, 2002, 2002 CPD ¶ 157 at 6-7.

Here, we find that Suntek’s arguments are untimely and not for consideration. As mentioned above, the Army issued the RFP on September 11, with a closing date for receipt of proposals of September 18. RFP at 1. Although the agency advised Suntek on September 18 of its decision to use the 8(a) program for the requirement, Suntek did not receive a copy of the RFP on the date it was issued because the solicitation was not publicly posted. AR, Tab 14, Protester Email Chain (Sept. 14‑17, 2015), at 2. On September 22, however, after the solicitation’s closing date, and upon Suntek’s request, the Army provided Suntek with the RFP, which identified the requirement as an 8(a) directed award. AR, Tab 14, Protester Email Chain (Sept. 14‑17, 2015), at 2; RFP at 64. Although the protester asserts that it did not know, based on the terms of the solicitation, whether the requirement had actually been offered and accepted into the 8(a) program, we note that, under SBA’s regulations, an agency cannot conduct an 8(a) competition prior to SBA’s acceptance of the procurement into the 8(a) program. 13. C.F.R. § 124.504(b).

The SBA, which provided comments to our Office in response to the protest, explains that “[i]f [it] had not yet accepted the procurement, the Army would have been barred by § 124.504(b) from issuing a solicitation and accepting offers for the contract as an 8(a) procurement.” SBA’s Comments (Nov. 16, 2015), at 2. The SBA also states that, “[b]ecause Suntek received a copy of the solicitation after offers were due, Suntek should have known that SBA had already accepted the procurement into the 8(a) program.” Id.

Suntek contends that its arguments arise from the date of contract award, and therefore argues that its obligation to protest did not rise until that date. We conclude, based on the regulatory provisions cited by the SBA, above, that the protester knew or should have known that the SBA had accepted the requirement into the 8(a) program based on the terms of the solicitation, which the protester received on September 22. Cf. Solers, Inc., B-404032.3, 404032.4, Apr. 6, 2011, 2011 CPD ¶ 83 at 8 n.8 (a protester may presume that an agency will act properly in following regulations). Suntek, however, did not file its protest until October 5--which was 13 days after it received the solicitation from the agency. Accordingly, any protest challenging the offer and acceptance of this requirement into the 8(a) program, or the SBA’s determination that the requirement is exempt from an adverse impact analysis because it is a “new” requirement, is untimely because Suntek filed its protest more than 10 days after it knew, or should have known of SBA’s acceptance of the requirement into the 8(a) program. 4 C.F.R. § 21.2(a)(2).

The protest is dismissed.  (Suntek Systems, Inc. B-412265: Dec 22, 2015)  (pdf)


Eastern Forestry asserts that the agency gave parties insufficient time from the posting of amendment No. 2 on FBO to respond to the amended solicitation. The Army argues that the protest was untimely filed since it amounted to a challenge to the terms of the solicitation, which had to be filed not later than the next closing time for receipt of proposals. AR at 6.

Our Bid Protest Regulations contain strict rules for the timely submission of protests. They specifically require that a protest based upon alleged improprieties in a solicitation that are apparent prior to bid opening must be filed before that time. Bid Protest Regulations, 4 C.F.R. § 21.2(a)(1). We have recognized an exception to this requirement, however, when, as a result of extremely limited time periods, circumstances do not permit filing before bid opening. See, e.g., Ling Dynamic Sys., Inc., B‑252091, May 24, 1993, 93-1 CPD ¶ 407 at 3 (protester learned basis for challenging solicitation only 2 hours before bid opening); G. Davidson Co., Inc., B‑249331, July 14, 1992, 92-2 CPD ¶ 21 at 2 n.1 (concluding that 2 hours and 45 minutes was not a reasonable period of time within which to file a protest); The Big Picture Co., B-210535, Feb. 17, 1983, 83-1 CPD ¶ 166 at 2 (amendment received one day before bid opening). In such cases, we have applied the rule that the protester must challenge the asserted impropriety no later than 10 days from the time it knew or should have known of its basis for protest. See, e.g., The Big Picture Company, supra; G. Davidson Co., Inc., supra.

Here, as indicated above, amendment No. 2 was not posted on FBO until after business hours on July 29, and it is undisputed that Eastern Forestry first became aware of amendment No. 2 the next morning, approximately 45 minutes before the scheduled bid opening. In these circumstances, given the extremely limited amount of time available before bid opening, we find that it is appropriate to apply the 10‑day test for timeliness. Since Eastern Forestry’s protest was filed on July 31, one day after bid opening, the protest is timely.  (Eastern Forestry B-411848: Nov 9, 2015)  (pdf)


On April 4, 2014, Adams filed the instant protest with our Office asserting, as it had in its bid protests at the courts, that the agency improperly set aside the Job Corps center requirements for small businesses in violation of the Workforce Investment Act (29 U.S.C. § 2887), the Small Business Act (15 U.S.C. § 644(a)), and the Federal Acquisition Regulation (FAR § 19.502-1). Adams also argued that the agency’s decision to set aside the procurements violated the Consolidated Appropriations Act of 2014 (H.R. 3547, 113th Congress).

Based upon our review of the record, we find that Adams’ arguments with regard to the agency’s violation of the Workforce Investment Act, Small Business Act, and the FAR are untimely challenges to the terms of the solicitations. Our Bid Protest Regulations contain strict rules for the timely submission of protests. They require that a protest based upon alleged improprieties in a solicitation that are apparent prior to the closing time for receipt of proposals be filed before that time. Bid Protest Regulations, 4 C.F.R. § 21.2(a)(1) (2014).

Here, Adams was aware that the solicitations were set-aside for small businesses at the time the RFPs were issued on May 8, 2012 (Gadsden) and December 14 (Shriver) respectively but waited to file its protests with our Office until April 4, 2014. Thus, the protester’s challenges to the solicitations set‑aside requirements are untimely.

The protester nonetheless asserts that, although it did not file its protests with our Office until after the closing dates for the solicitations, each of its protest grounds were timely filed with our Office because its protest bases were the subject of litigation before a court of competent jurisdiction when it filed with the COFC and subsequently appealed those decisions to the CAFC. Adams argues that, had it filed with our Office during the pendency of these proceedings we would have dismissed its protests because they were before a court of competent jurisdiction. See 4 C.F.R. § 21.11(b). In effect, the protester asserts that its filings with the COFC and CAFC tolled the timeliness requirements of our Office. We do not agree.

While the protester is correct that our Office will dismiss a protest where another protest addressing the same issues is pending before a court of competition jurisdiction, the completion of the proceedings before the court does not automatically restart the time for filing a protest with our Office. Instead, we must consider how the court’s decision affects any subsequently-filed protest before our Office. Where, as here, a decision by the COFC (including an appeal before the CAFC) constitutes a final adjudication on the merits with respect to the procurement, such a decision bars further reconsideration of the merits of those issues by our Office. See Warvel Prods., Inc., B‑281051.5, July 7, 1999, 99-2 CPD ¶ 13 at 8. Here, because the COFC and CAFC decisions were adjudicated by the COFC and CAFC in the agency’s favor, we will not reconsider Adams’ claims with regard to the agency’s violation of the Workforce Investment Act, the Small Business Act, and the FAR.

Similarly, Adams’ challenge to the solicitation based upon its assertion that the set‑aside violated the Consolidated Appropriations Act of 2014 is not a matter that we will consider. In this regard, Adams states in its protests that the Act was passed on January 18, 2014, and that the provisions of that Act direct the agency to reconsider its decision to set aside the procurements for small businesses.[1] This matter, however, could have been brought before the COFC and CAFC. As of January 18, the date the Act was passed, the CAFC had yet to issue its opinion on Adams’ appeals of the COFC decisions in Gadsden or Shriver. The protester did not, however, file new protests with COFC regarding the Consolidated Appropriations Act of 2014. Additionally, the agency asserts, and the protester does not dispute, Adams’ petition to the Federal Circuit for a rehearing en banc on February 5 cited the House Report language for the Consolidated Appropriations Act, 2014 to support its position that the agency’s set-aside was improper. The Circuit Court denied Adams’ petition on March 14.

As our Office has held with regard to a final adjudication by a court of competent jurisdiction, the effect of such a judgment extends to both matters that were decided, as well as those that could have been brought before the court by the protester. Warvel Prods., Inc., supra. Accordingly, we find Adams’ arguments regarding the Consolidated Appropriations Act of 2014 either were or could have been the subject of the proceedings before the COFC and CAFC.

Finally, Adams asserts that its protest is timely because it could not have filed its protest until it knew what the agency planned to do in response to the Consolidated Appropriations Act and the CAFC’s opinion. In this regard, the protester argues that the agency’s intention was not known until the agency issued its procurement plan on March 27, 2014. The procurement notice published by the agency on this date provided “Award Dates” for “Ongoing Procurements” (Gadsden--April 14, 2014; Shriver--May 14, 2014), and for “Upcoming Procurements” provided the “Anticipated RFP Release Date, Anticipated RFP Closing Date, and Anticipated Award Date” for various Job Corps centers broken down by region. See Agency Notice (Mar. 27, 2014).

We do not agree with the protester that the agency’s March 27 notice--which simply announced the agency’s anticipated award dates for the Gadsden and Shriver Job Corps centers--restarted the time for which it could file its protest. As discussed above, the COFC and CAFC adjudicated the protester’s set-aside arguments in favor of the agency; the agency was under no obligation to amend or otherwise consider amending the solicitations it had issued in 2012. As also discussed above, for purposes of our Office’s review, the courts’ resolution includes the arguments the protester raised or could have raised regarding the Consolidated Appropriations Act of 2014. To the extent the protester contends that it is now timely to challenge the agency’s decision not to take further action in response to the CAFC’s decision or the Consolidated Appropriations Act of 2014, we find no merit to this argument.  (Adams and Associates, Inc., B-409680,B-409681: Apr 22, 2014)  (pdf)


First, Lulus argues that the agency improperly failed to include past performance questionnaires in the solicitation. We find that this contention is untimely. If Lulus was concerned that the solicitation lacked past performance questionnaires, it should have raised its objection prior to the deadline for submitting bids; protests of alleged solicitation improprieties such as this must be filed no later than the time that bids were due. Bid Protest Regulations, 4 C.F.R. § 21.1(a)(1) (2013). Since Lulus did not raise this argument until after award, we dismiss this protest argument as untimely.  (Lulus Ostrich Ranch, B-408993.2: Feb 21, 2014)  (pdf)
 


As a threshold matter, the agency argues that Motorola’s supplemental protest is untimely because it was not filed within 10 days of Motorola’s counsel receiving the agency’s report. According to the agency, since the protester’s counsel had the information necessary to advance the allegation--the fact that Harris intended to furnish the Motorola APX 7000 radio--the allegation, to be timely, had to be filed within 10 days of counsel’s receipt of the agency report. The agency contends that protester’s counsel stands in the shoes of his or her client for purposes of using information furnished under a protective order, and that information known to the client--such as company policies--is imputed to counsel for purposes of meeting our timeliness rules. According to the agency, “Motorola cannot legitimately hide behind the ignorance of its attorneys as to its asserted corporate practices to evade the timeliness rules applied to protests.” Agency Supplemental Report at 1.

We agree with the agency that, in most instances, counsel must effectively stand in the shoes of the client where information is covered by a protective order and counsel cannot properly obtain the benefit of his or her client’s input. See generally, Columbia Research Corp., B-247073, Sept. 17, 1992, 92-2 CPD ¶ 184. This is not such a case. First, and most importantly, the record shows that Motorola diligently pursued the information in question at all relevant times. As noted, when it received its debriefing, as well as immediately thereafter, Motorola not only specifically requested the information, but also provided an underlying legal basis for its belief that it was entitled to the information.

Second, the record shows that Motorola’s counsel not only timely and properly followed the procedures outlined in the protective order in seeking to obtain the information for release to their client but, in fact, went beyond what was required. In this connection, protester’s counsel provided agency counsel with a proposed redacted version of the agency’s LM/COS within 2 days of receiving the agency report. Thereafter, pursuant to the terms of the protective order, protester’s counsel waited two business days before tentatively concluding that agency counsel did not object to the proposed redacted version of the LM/COS. However, out of an abundance of caution, protester’s counsel still did not release the information to their client, as they legally were entitled to do under the terms of the protective order. Instead, protester’s counsel attempted to contact agency counsel to obtain her concurrence to the release of the redacted LM/COS.

Agency counsel waited yet another day before advising protester’s counsel that she objected to the release of the proposed redacted LM/COS. By the time protester’s counsel heard from agency counsel, a federal holiday was upon us. The following Monday, protester’s comments were due to be filed. Those comments were timely filed without protester’s counsel having the benefit of the client’s input. Nonetheless, the very next day, after protester’s counsel sought the assistance of our Office in resolving the dispute, agency counsel acquiesced and made the information available outside of the protective order. Motorola filed its supplemental protest allegation within 10 days of receiving the information.

In the final analysis, the record shows that Motorola diligently and persistently sought the information in question, and its counsel went beyond what was required under the protective order in order not to release information that the agency may have thought was properly protected. Ultimately that information was provided to Motorola by the agency, in apparent recognition of the fact that Motorola legally was entitled to the information under the FAR in the first instance. The agency now seeks unfairly to benefit from its own dilatory behavior, since it is clear from the record that Motorola would (and did) advance this argument as soon as it had the relevant information. We decline the agency’s request to dismiss the issue, conclude that it is timely, and consider it on the merits. 
(Motorola Solutions, Inc, B-409148, B-409148.2, Jan 28, 2014)  (pdf) 


Timeliness

As an initial matter, the Marine Corps argues that Logis-Tech’s protest should be dismissed as untimely because it was filed with our Office more than 10 days after the debriefing in which Logis-Tech learned the basis for its protest. The Marine Corps argues that Logis-Tech cannot base the timeliness of its GAO protest on its filing of a timely agency-level protest, because the Marine Corps, in its view, lacks jurisdiction to consider an agency-level protest of a task order.

The Marine Corps’ argument that it lacks jurisdiction to hear an agency-level protest involving the issuance of a task or delivery order under a multiple-award, indefinite-delivery, indefinite-quantity contract is based on language in the statute that authorizes--and establishes a preference for the multiple awards of--task order contracts. See generally 10 U.S.C. §§ 2304a-2304e (defense agencies); 41 U.S.C. §§ 4101-4106. The Marine Corps points to certain provisions within the statutory scheme authorizing the use of task order contracts that limit the rights of companies to file a protest. Among other things, these provisions state that the “Comptroller General of the United States shall have exclusive jurisdiction of a protest authorized under paragraph (1)(B).” 10 U.S.C. § 2304c(e)(2). Hence, the Marine Corps concludes that it may not hear an agency-level protest of the issuance of a task order (under a task order contract), and that the time lost by the protester filing an unauthorized agency level protest now means that the protester cannot file a timely protest with the GAO.

In contrast, Logis-Tech counters that its agency-level protest was timely filed, and that upon receipt of the Marine Corps’ dismissal of its protest, it timely filed a follow-on protest with GAO. Logis-Tech also points out that the Marine Corps encourages its contractors to resolve disputes directly with the agency when possible. Protester’s Opposition to Dismissal, Oct. 24, 2012, at 1.

The only issue before GAO is whether the task order protest filed with GAO is timely. To answer this question, we need look no further than our Bid Protest Regulations. The timeliness rules within our Bid Protest Regulations, in relevant part, provide as follows:

[i]f a timely agency-level protest was previously filed, any subsequent protest to GAO filed within 10 days of actual or constructive knowledge of initial adverse agency action will be considered, provided the agency-level protest was filed in accordance with paragraphs (a)(1) and (a)(2) of this section, unless the agency imposes a more stringent time for filing, in which case the agency’s time for filing will control. . . .

4 C.F.R. § 21.2(a)(3) (2012) (emphasis added).

Our timeliness rules do not require GAO to consider whether the initial adverse agency action is in the form of dismissal (for lack of jurisdiction or other reasons) or denial on the merits. So long as the protest was filed with the agency in a timely manner, it will be considered timely with our Office if filed within 10 days of when the protester actually or constructively learned that the agency denied or dismissed the protest. For these reasons, we conclude that Logis-Tech’s GAO protest is timely because it was timely filed with the agency, and then timely filed within 10 days of the agency’s decision to dismiss the agency-level protest. See 4 C.F.R. § 21.2(a)(3).  (Logis-Tech, Inc., B-407687, Jan 24, 2013)  (pdf)


Concerning the timeliness of McKissack’s challenge of the board’s qualifications, our Bid Protest Regulations require that protests not based upon alleged improprieties in a solicitation:

shall be filed not later than 10 days after the basis of protest is known or should have been known (whichever is earlier) with the exception of 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, with respect to any protest ground basis which is known or should have been known either before or as a result of the debriefing, the initial protest shall not be filed before the debriefing date offered to the protester, but shall be filed no later than 10 days after the date on which the debriefing is held.

4 C.F.R. § 21.2(a)(2) (2010). McKissack asserts that its challenge to the qualification of the evaluation board is not untimely because the debriefing it is due pursuant to FAR § 36.607(b) is a “required” debriefing within the meaning of our timeliness regulations and, therefore, it should have the right to file a protest concerning any aspect of the procurement other than challenges to the solicitation, such as its challenge to the qualifications of the evaluation board, within 10 days of the date it receives its debriefing. We disagree, and conclude that the timeliness exception in our Bid Protest Regulations does not apply to debriefings provided in the context of an A/E Brooks Act procurement, and that McKissack was required to file its challenge within ten days of the date it knew or should have known the basis for its protest.

The debriefing exception in our timeliness regulations applies only to protests challenging a procurement conducted on the basis of “competitive proposals” under which a debriefing “is requested and, when requested, is required.” 4 C.F.R. § 21.2(a)(2). The term “competitive proposals” is not defined by our Bid Protest Regulations, nor is it expressly defined by statute or regulation. Rather, it has been coined a “term of art.” Systems Plus, Inc. v. United States, 68 Fed. Cl. 206, 209-210 (2005) (holding that a procurement under the Federal Supply Schedule program, pursuant to FAR Subpart 8.4 was not conducted on the basis of competitive proposals). We conclude that an A/E competition conducted pursuant to the procedures established by the Brooks Act and FAR Subpart 36.6 does not constitute a competition based on “competitive proposals,” and that the exception in our timeliness rules does not apply.

In reaching this conclusion, we consider that our Office has previously determined that the use of negotiated procedures in accordance with FAR Part 15--as evidenced by the issuance of a request for proposals--is the hallmark of a procurement conducted on the basis of competitive proposals. See The MIL Corp., B-297508, B-297508.2, Jan. 26, 2006, 2006 CPD ¶ 34 at 6 (citing, e.g., Peacock, Myers & Adams, B-279327, Mar. 24, 1998, 98-1 CPD ¶ 94); see also, Rhonda Podojil--Agency Tender Official, B-311310, May 9, 2008, 2008 CPD ¶ 94 at 3 (holding that A-76 competition, where the agency issued a solicitation for “proposals” and expressly invoked FAR 15 procedures, was conducted on the basis of competitive proposals for the purposes of the application of the debriefing exception to our timeliness regulations). Where a procurement is not conducted pursuant to these procedures, we have held that the procurement was not one conducted on the basis of competitive proposals, and that the exception to our timeliness rules does not apply. See The MIL Corp., supra (holding that procurement conducted pursuant to FAR Subpart 8.4, rather than FAR Part 15, was not conducted on the basis of competitive proposals).

The procurement at issue in this case was not conducted pursuant to FAR Part 15 procedures, but under the Brooks Act and FAR Subpart 36.6. As noted above, these procedures do not provide for the issuance of a solicitation, the preparation of proposals, the submission or prices, or other hallmarks of a FAR Part 15 competition. In fact, in selecting the most qualified firms on the basis of A/E qualification statements under the Brooks Act, FAR Part 15 procedures are expressly not applied pursuant to FAR § 36.601-3(b). Accordingly, an A/E procurement under FAR subpart 36.6 does not share the characteristics of the FAR Part 15 procurements that we consider to be conducted on the basis of “competitive proposals.”

Additionally, we find FAR § 6.102 instructive in its separation of Brooks Act procedures from “competitive proposals.” FAR § 6.102 describes the “Use of Competitive Procedures” under the FAR. FAR § 6.102(b) is entitled “[c]ompetitive proposals,” while FAR § 6.102(d) is entitled “[o]ther competitive procedures.” These sections expressly carve out procurements conducted pursuant to the Brooks Act and FAR Subpart 36.6 from the category of competitions based on “competitive proposals.” Instead, procurements under FAR Subpart 36.6 are specifically highlighted as a form of “other competitive procedures.” 

In sum, because we conclude that the debriefing due to McKissack under FAR § 36.607 is not a debriefing in a “procurement conducted on the basis of competitive proposals under which a debriefing is requested and, when requested, is required,” the exception for such debriefings in our Office’s timeliness regulations does not apply, and McKissack was required to file any protest other than a challenge to the terms of the solicitation within 10 days after the basis of protest is known or should have been known. Where McKissack knew the qualifications of the individuals on the evaluation board at the time of the oral evaluation on February 7, was informed of Parson’s selection as the most highly rated firm on February 27, but did not file its protest until March 26, the protest is untimely and must be dismissed.  (McKissack-URS Partners, JV, B-406489.2, B-406489.3, B-406489.4, May 22, 2012)  (pdf)


As an initial matter, GSA argues that the protest is untimely because it was filed more than 10 days after the protester received its written debriefing on October 13; the protest was filed on October 25, twelve days after October 13. See Bid Protest Regulations, 4 C.F.R. § 21.2(a)(2) (2011) (establishing that for protests challenging a procurement conducted on the basis of competitive proposals under which a debriefing is requested and, when requested, is required, such protests must be filed not later than 10 days after the date on which the debriefing was held). We disagree.

The record reflects that the agency’s written debriefing was preceded and followed by the agency’s opening the door to a verbal continuation of the debriefing process. Specifically, the contracting officer initially advised Harris that the agency planned to provide Harris with a written debriefing. In response, Harris e-mailed to ask whether, in addition to the written debriefing, GSA would also be amenable to “a verbal debrief.” Protest, Exhibit 9, Oct. 12, 2011 E-Mail Exchange Between Harris and Contracting Officer. Prior to providing the written debriefing, the contracting officer responded by stating “Let me get you the written one, after you read it, call me and I will see if I can fill in the gaps.” Id. On October 13, Harris received the written debriefing, which included the statement, “[t]his document satisfies the debriefing requirement by providing the basis for the selection decision and contract award in accordance with [Federal Acquisition Regulation (FAR) §] 16.506.” Then, on October 17, 4 days after Harris received the written debriefing and within its 10-day protest window, the contracting officer responded to Harris’ second request for a “verbal debrief” by saying, “I don’t mind a verbal” and asking for the firm’s questions. Id., Exh. 12, Oct. 17-18, 2011 E-Mail Exchange Between Harris and Contracting Officer. On October 18, Harris sent the contracting officer a letter with a subject line which read “Verbal Debrief Request.” The letter reiterated Harris’ request for a “verbal debrief” and provided additional questions to “facilitate the furtherance of the debrief process.” Protest, Exh. 13. On October 20, a telephone call--which Harris refers to as an oral debriefing--took place between Harris and the contracting officer to address these questions. The contracting officer did not take either of the post-written debriefing opportunities to tell Harris that his verbal responses to the firm’s questions were not part of the debriefing process, notwithstanding Harris’ continued references to an oral debriefing process.

In our view, notwithstanding the statement made in the written debriefing, the above communications reflected, at a minimum, considerable ambiguity as to whether the agency’s debriefing process was continuing. Given this ambiguity, and considering that we resolve doubts regarding timeliness in favor of protesters, Fort Mojave/Hummel, a Joint Venture, B-296961, Oct. 18, 2005, 2005 CPD ¶ 181 at 6 n.7, we find that the protester’s challenges to the agency’s evaluation are timely when filed within 10 days of the agency’s conclusion of what Harris refers to as its “oral debriefing” on October 20.

In support of its argument that Harris’ protest is untimely, GSA cites our decision in New SI, LLC, B-295209 et al., Nov. 22, 2004, 2005 CPD ¶ 71 at 3. Our decision in New SI, LLC, however, is distinguishable from the case at hand. In New SI, LLC, we found a protest untimely when the protest was filed more than 10 days after the protester received a written debriefing, but within 10 days of the conclusion of further oral communications between the protester and the agency. In New SI, LLC, unlike the case at hand, we found that there was no affirmative indication from the agency that the debriefing would remain open after a scheduled session and thus we considered the debriefing to have concluded at the end of that session. In this case however, given the agency’s willingness to further provide what both the protester and both parties refer to as a “verbal” debriefing, Harris reasonably understood the agency as having extended the debriefing process to, in the contracting officer’s words, “fill in the gaps,” from the written debriefing.  (Harris IT Services Corporation, B-406067, Jan 27, 2012)  (pdf)
 


The Air Force argues that HBDC’s protest should be dismissed because the certified return receipt demonstrates that HBDC received notice of its exclusion from the competition on November 4, and because HBDC did not timely request a debriefing or file a timely protest. HBDC maintains that the timeliness of its debriefing request and protest should be measured from November 15, as opposed to November 4, since the Air Force sent the notice of exclusion to an allegedly “incorrect address.”

More specifically, HBDC asserts that the Air Force erred in sending the notice to HBDC’s physical government business address, rather than to HBDC’s designated mailing address, and due to this error the notice cannot be considered received by HBDC until the time the notice reached HBDC’s contracts manager on November 15. HBDC argues that its separate mailing address was identified on Standard Form (SF) 33 of its most recent proposal revision of September 14, and is accurately listed in HBDC’s Central Contracting Registry (CCR) Database profile, along with its physical government business address.

HBDC also argues that the Defense FAR Supplement (DFARS) and its associated Procedure, Guidance, and Information (PGI), require defense agencies to “use the CCR database as the primary source of contractor information for contract award and administration,” and “shall use the CCR database as the authoritative source” for certain information, including a contractor’s mailing address. DFARS PGI 204.1103. Finally, HBDC notes that the Air Force sent correspondence to HBDC’s “correct” mailing address earlier in the competition.

We fundamentally disagree with HBDC’s premise that the Air Force directed the notice of exclusion to an “incorrect” address. The Air Force notice correctly indicated--i.e., there were no typographical errors--an address HBDC provided to the Air Force throughout the competition--i.e., in its initial proposal, in its revised proposal, on the cover letter of its revised proposal signed by its contracts manager, and in the signature line of email correspondence sent by its contracts manager. AM, Tab 1, at 2; Tab 2, at 1, 2; Tab 5 at 2, 3. It is this address which HBDC now claims to be “incorrect” for the purpose of receiving the agency’s exclusion letter.

To the extent HBDC listed a different address on the SF 33 of its September 14 revised proposal submission, this address was not identified as a “mailing address” or HBDC’s “correct” address, and the record reflects that in various other places in this submission, HBDC identified its address as the address used by the agency to provide this notice.[1] HBDC Response, Tab 3, at 1. We also note that the DFAS PGI provisions that HBDC relies on for establishing its “correct” mailing address do not apply to agency communications during the course of a procurement--by their terms they apply to contract award and contract administration matters. The use of a firm’s CCR information has never been established as a requirement when providing adverse action notices.

More importantly, our timeliness rules do not turn on whether an agency has sent information to a particular designated address; rather, we look to whether the relevant information was in fact received by the offeror. In this regard, our Office has previously held that actual notification to a company’s designated point of contact is not required to constitute notice under our Bid Protest Regulations, where notice is otherwise received by the firm. For example, in Jarrell-Ash Div., Fisher Scientific Co.--Reconsideration, we held that notice of rejection of a proposal was effective on the date it was received at the company’s sales office address, even where the sales office address was not designated in the firm’s proposal, and was not the address of the individuals who prepared the proposal. Jarrell-Ash Div., Fisher Scientific Co.--Reconsideration, B-209236.3, Dec. 21, 1982, 82-2 CPD ¶ 562 at 3.

Here, it is beyond dispute that the Air Force sent the notice of exclusion, via certified mail, to HBDC’s designated contracts manager at an address set forth on numerous proposal documents submitted by HBDC--including a revised proposal cover letter signed by the contracts manager--and that receipt of the notice on November 4 is confirmed by an HBDC employee’s signature on the certified mail return receipt.

Accordingly, there is no basis for HBDC to claim that the Air Force caused the delay here. That it took HBDC 11 days to route the notice of exclusion to the appropriate person does not toll the filing deadline imposed by our regulations, or the statutory deadline to request a required debriefing.

In this regard, Our Bid Protest Regulations contain strict rules for the timely submission of protests. Under these rules, a protest based on alleged improprieties in a solicitation must be filed prior to bid opening or the time established for receipt of proposals, 4 C.F.R. § 21.2(a)(1) (2010), and all other protests 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. 4 C.F.R. § 21.2(a)(2). Where a protester timely requests a required debriefing,a protest filed within 10 days of the debriefing will be considered timely with respect to bases known before or as a result of the debriefing. Id. An offeror excluded from further consideration prior to contract award may request a preaward debriefing, but must submit a written request to the contracting officer within three days after receipt of the agency’s notice of exclusion. Federal Acquisition Regulation (FAR) § 15.505(a)(1). An offeror that fails to submit its request to the contracting officer within three days after receiving notice of exclusion is not entitled to either a preaward, or post-award, debriefing. FAR § 15.505(a)(3).

Accordingly, HBDC was required to request a debriefing within three days of its receipt of the Air Force notice on November 4, or, absent a debriefing, was required to file its protest no later than 10 days after that date. Where HBDC did not timely request a debriefing, and failed to file its protest until 17 days after it was notified that its proposal had been excluded from the competitive range, the protest is untimely and must be dismissed. 

The protest is dismissed.  (Hawker Beechcraft Defense Company, LLC, B-406170, December 22, 2011)


Improper Receipt of Information

TMG next argues that SoBran improperly received and used information about the Army's future staffing to reduce the number of proposed employees within its proposal. In support of this allegation, TMG provides an affidavit from one of its employees who states that, on August 11, 2011, a SoBran employee told her that, during proposal preparation, SoBran had information that the Army would be hiring additional veterinary technicians to perform work under the contract, thereby reducing the need for contractor personnel. This allegation, first raised in TMG's August 29 comments on the agency report, is untimely.

Under our Bid Protest Regulations, a protest based on other than solicitation improprieties must be filed not later than 10 calendar after the basis of protest is known or should have been known, whichever is earlier. 4 C.F.R. sect. 21.2(a)(2) (2011). When a protester initially files a timely protest, and later supplements it with independent protest grounds, the later-raised allegations must independently satisfy the timeliness requirements, since our Regulations do not contemplate the unwarranted piecemeal presentation or development of protest issues. Maybank Industries, LLC, B-403327, B-403327.2, Oct. 21, 2010, 2010 CPD para. 249 at 4.

The record shows that, by August 11, TMG knew that the approximately $400,000 price difference between its proposal and SoBran's was the deciding factor in the award decision. By this time, TMG had also concluded, as it stated in its July 19 initial protest, that it was unclear how SoBran could propose a price $400,000 less than TMG's and still offer the same number of quality personnel at marketable labor rates. Initial Protest at 5. When TMG allegedly heard, on August 11, that SoBran had learned, during the preparation of its proposal, that the need for contractor personnel would be reduced, information not provided to the protester, it had all the information it needed to raise this allegation. While the record of discussions TMG received in the agency report may have provided additional support for this allegation, this information was not necessary to raise this allegation. As a result, TMG's allegation, first raised more than 10 days after the protester knew or should have known the basis of protest, is untimely and will not be considered.  (The McConnell Group, Inc., B-405377, October 21, 2011)  (pdf)


On September 16, 2010, prior to DOL's submission of its agency report on WTI's protest, another unsuccessful offeror (Enterprise Solutions Realized, Inc. (ESR)) filed a protest with the United States Court of Federal Claims (COFC), challenging the award to ASC and seeking a temporary restraining order and injunctive relief. Docket No. 1:10CV-00628-FMA. Because the protested procurement was then pending before a court of competent jurisdiction, we dismissed WTI's protest in accordance with our Bid Protest Regulations, 4 C.F.R. sect. 21.11(b) (2010).

On September 27, DOL filed the administrative record with COFC. After reviewing the record, ESR moved on October 7 to dismiss its protest. The Court dismissed ESR's complaint on October 12.

WTI did not intervene in the COFC litigation. Instead, according to WTI, it monitored the COFC proceedings on a weekly basis using the commercial website FreeCourtDockets.com (at http://www.freecourtdockets.com). WTI Final Comments at 19. Based on the commercial website's report of the official COFC Docket Entry No. 1 (dated Sept. 16, 2010), which refers to an "Answer due by 11/15/2010," WTI believed an answer was due from the COFC judge on that date. Protest at 3. Interpreting the anticipated answer as a "resolution" of the matter at COFC, WTI re-filed its protest with our Office on November 18, 37 days after the Court's dismissal of ESR's complaint. WTI Response to Motion to Dismiss at 6.

Our Bid Protest Regulations contain strict rules for the timely submission of protests. Under these 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. 4 C.F.R. sect. 21.2(a)(2). A protester may not passively await information providing a basis for protest. Rather, a protester has an affirmative obligation to diligently pursue such information, Automated Med. Prods. Corp., B‑275835, Feb. 3, 1997, 97-1 CPD para. 52 at 2-3, and a protester's failure to utilize the most expeditious information-gathering approach under the circumstances may constitute a failure to meet its obligation in this regard. See, e.g., Thomas May Constr. Co., B-255683, Mar. 23, 1994, 94-1 CPD para. 210 (no diligent pursuit where protester waited until after notice of award to file Freedom of Information Act requests seeking information publicly available at bid opening). Here, WTI did not meet its obligation to utilize the most expeditious information-gathering approach under the circumstances.

WTI asserts that it acted promptly in re-filing its protest at our Office, since it acted within 3 days of the November 15 date for filing an answer as specified in the official COFC Docket Entry No. 1 included on the FreeCourtDockets.com website. However, while that entry may have included the most recent information concerning the schedule for the COFC litigation available on the FreeCourtDockets.com website, the record indicates that more up-to-date information was available to the public through the official website for litigation at COFC (and other federal courts).

In this regard, the official electronic case docket for federal courts, including COFC, is maintained online in the PACER database. According to the PACER website, it is a service of the U.S. Judiciary, operated by the Administrative Office of the U.S. Courts, which provides electronic public access to case and docket information available immediately after electronic filings are made. PACER, Frequently Asked Questions (FAQ), http://www.pacer.gov/psc/faq.html (Jan. 25, 2011). Here, the publicly-available PACER docket for ESR's protest indicates that the order granting ESR's motion to dismiss was filed and judgment entered on October 12; this information was reflected in PACER that same day. PACER Docket, Docket No. 1:10CV-00628-FMA, Entry Nos. 21-22. Had WTI been diligently monitoring the PACER website, instead of the commercial FreeCourtDockets.com website, it would have promptly known on or about October 12 that the ESR litigation was resolved by dismissal of ESR's complaint on October 12. We conclude that in relying on a commercial website (freecourtdockets.com) rather than the up-to-date, official government online docket, WTI was not using the most expeditious information- gathering approach to follow the COFC litigation.

Our conclusion is not changed by the fact that, as noted by WTI, PACER usage requires registration and involves fees. PACER is available to anyone who registers for an account and there is no charge for registration. PACER, Home Page, at http://www.pacer.gov (Jan. 25, 2011). While there is a charge for access to PACER documents, the charges are nominal ($.08 per page, up to $2.40 per document), and are waived when usage is less than $10 in any given quarter. PACER FAQ at http://www.pacer.gov/psc/faq.html, (Jan. 25, 2011). Protesters pursuing litigation at our Office are expected to bear such costs, and the nominal cost for reasonably monitoring the COFC litigation provides no excuse for not doing so.

Since WTI could and should have known on or about October 12 that ESR's protest at COFC had been resolved, which furnished the basis for its re-filing at our Office, its November 18 re-filing of its protest, some 37 days later, is untimely.  (Waterfront Technologies, Inc., B-403638.3, February 22, 2011)  (pdf)


The RFQ was issued using simplified acquisition procedures for a non-magnetic stud link specialized chain, and the RFQ included Federal Acquisition Regulation (FAR) clause 52.213-4, Terms and Conditions -Simplified Acquisitions (Other Than Commercial Items).

Baldt's quote was $864,000, and Lister's quote was $720,000. Award was made to Lister, and Baldt protested to our Office, complaining that the award exceeded the simplified acquisition threshold.  Baldt requests our recommendation that the Navy terminate the contract and resolicit the requirements using either sealed bidding or contracting by negotiation procedures. Protest at 4.

We find that the protest is untimely and not for consideration by our Office. Our Bid Protest Regulations contain strict rules requiring timely submission of protests. Under these rules, protests based upon alleged improprieties in a solicitation which are apparent prior to the time set for receipt of initial proposals must be filed prior to that time. 4 C.F.R. sect. 21.2(a)(1) (2010). Underlying our timeliness rules regarding solicitation improprieties is the principle that challenges which go to the heart of the underlying ground rules by which a competition is conducted, should be resolved as early as practicable during the solicitation process, but certainly in advance of an award decision if possible, not afterwards. Continental Staffing, Inc., B-299054, Jan. 29, 2007, 2007 CPD para. 18 at 4-5. Such a rule promotes fundamental fairness in the competitive process by preventing an offeror from taking advantage of the government as well as other offerors, by waiting silently only to spring forward with an alleged defect in an effort to restart the procurement process, potentially armed with increased knowledge of its competitors' position or information. See also Blue & Gold, Fleet, L.P. v. United States, 492 F.3d 1308, 1313-14 (Fed. Cir. 2007). It also promotes efficiency by ensuring that concerns regarding a solicitation are raised before contractor and government resources are expended in pursuing and awarding the contract, thus avoiding costly and unproductive litigation after the fact. Id.

The essence of Baldt's allegation is that the agency should not have used simplified acquisition procedures to procure the items at issue here, and that, given the amount of the quotes, no award is possible under the solicitation (including an award to Baldt). However, Baldt knew, or should have known, prior to the time set for receipt of quotes, that its own quote would be priced more than eight times higher than the simplified acquisition threshold, and that any resulting contract would likely exceed the threshold. We find that Baldt was required to protest the agency's use of the simplified acquisition procedures prior to the closing time, rather than waiting till after award. Accordingly, Baldt's post-award protest is untimely.

Baldt argues that we should consider its protest under our "good cause" or "significant issue" exceptions to our timeliness rules. See 4 C.F.R. sect. 21.2(c). The "good cause" exception is limited to circumstances where some compelling reason beyond the protester's control prevents the protester from filing a timely protest. Dontas Painting Co., B-226797, May 6, 1987, 87-1 CPD para. 484 at 2. The significant issue exception is limited to untimely protests that raise issues of widespread interest to the procurement community, and which have not been considered on the merits in a prior decision. Schleicher Cmty. Corrs. Ctr., Inc., B-270499.3 et al., Apr. 18, 1996, 96-1 CPD para. 192 at 7. Baldt has not demonstrated a compelling reason beyond the protester's control that prevented the protester from filing a timely protest, and therefore there is no basis to invoke the "good cause" exception. Also, the record does not show that the issues raised are of widespread interest to the procurement community that would otherwise warrant their resolution in the context of an otherwise untimely protest. See Critical Process Filtration, Inc., B‑400746 et al., Jan. 22, 2009, 2009 CPD para. 25 at 6; Global Commc'ns Solutions, Inc., B‑299044, B-299044.2, Jan. 29, 2007, 2007 CPD para. 30 at 3.

The protest is dismissed.  (Baldt Inc., B-402596.3, June 10, 2010) (pdf)


Following denial of its agency-level protest, CES filed this protest with our Office. The overarching theme of CES's protest is that the VA failed to use its statutory authority to make sole-source awards to SDVOSB concerns. However, this challenge contained in both the agency-level protest and the protest to our Office is untimely; it relates to the terms of the competition that were known to the protester as early as March 17, when it received the agency's email stating that the VA would proceed with the procurement on a sole-source basis.

More specifically, prior to the issuance of the solicitation on an unrestricted basis, CES sought a sole-source award as an SDVOSB concern and the VA refused to make such award. Protester's Comments at 2-3. Given that this acquisition was competed on an unrestricted basis, the protester was on notice when it submitted its offer that it would not receive the award on a sole-source basis, or be competing for this award under an SDVOSB set-aside. As a result, the protester's post-award challenge is untimely and will not be considered. 4 C.F.R. sect. 21.2(a)(1), (a)(2) (2009); Raith Eng'g and Mfg. Co., W.L.L., B-298333.3, Jan. 9, 2007, 2007 CPD para. 9 at 2.  (CES Industries, Inc., B-401427, September 1, 2009)  (pdf)


The protester argues that GSA’s evaluation did not reasonably determine the likely costs to the government of each vendor’s quotation because it did not consider the differing approaches each vendor took in preparing its price quotation. We find that this argument is a challenge to the terms of the solicitation, and was not timely raised.

Agencies must consider cost to the government in evaluating competitive proposals or quotes. 10 U.S.C. sect. 2305(a)(3)(A)(ii) (2000); AirTrak Travel et al., B-292101 et al., June 30, 2003, 2003 CPD para. 117 at 22; Health Servs. Int’l, Inc.; Apex Envtl., Inc., B-247433, B-247433.2, June 5, 1992, 92-1 CPD para. 493 at 3-4. Our Office has sustained pre-award challenges to the terms of solicitations that fail to provide for a meaningful comparison of offerors’ proposed prices or costs. E.g. CW Gov’t Travel, Inc.-Recon; CW Gov’t Travel, Inc. et al., B-295530.2, July 25, 2005, 2005 CPD para. 139 (sustaining pre-award challenge to solicitation that did not require offerors to propose binding prices for an indefinite-delivery/indefinite-quantity contract).

In contrast, our Office has found that post-award challenges to an agency’s cost or price evaluation scheme are not timely, if the challenged scheme was set forth in the solicitation, because a protest based upon alleged improprieties in a solicitation that are apparent prior to the closing time for receipt of initial quotes or proposals must be filed before that time. Bid Protest Regulations, 4 C.F.R. sect. 21.2(a)(1) (2009); e.g., General Dynamics-Ordnance & Tactical Sys., B-401658, B-401658.2, Oct. 26, 2009, 2009 CPD para. 217 at 6 (dismissing as untimely a post-award challenge to evaluation scheme that could produce a misleading result).

As discussed above, the RFQ stated that vendors would be evaluated on the basis of their quoted prices for the eight non-travel CLINs. The solicitation permitted vendors to quote composite rates, that is, the representative FTE could be comprised of numerous labor categories from the vendors’ FSS contracts. The RFQ, however, did not require vendors to estimate the number of hours that would be required to perform the SOW requirements, nor did the RFQ require vendors to base their price quotes on any specific mix of hours for the labor categories. Instead, the solicitation directed vendors to provide an “average” of the labor category rates included in their price quote.[2] See RFP, Q&A No. 4.

Ball primarily contends that the agency’s conclusion that AT&T’s evaluated price was 57% lower than Ball’s evaluated price is misleading because the comparison of the quoted prices does not take into account the types of labor categories selected by each vendor. Ball argues that simply comparing the vendors’ evaluated prices leaves unexamined the relative quality of the labor categories quoted or the quoted labor mix, and thus does not take into account the possibility that one vendor might require more FTEs or labor hours than another to perform the same work. Ball specifically contends that its composite labor rates were comprised of a mix of labor categories that contained more senior and more highly-qualified personnel, as compared to AT&T. For this reason, Ball contends that, although its CLIN prices were higher, Ball would require fewer FTEs and/or fewer hours to perform the same work as compared to AT&T.

While we agree with Ball that the evaluation conducted by GSA does not account for differences in the quoted labor categories, the agency’s price evaluation was clearly consistent with the scheme set forth in the solicitation. The plain language of the RFQ anticipated that vendors would be evaluated based solely on the CLIN prices quoted--that is, based on a simple average of all of the rates for the quoted labor categories, without regard to the number of FTEs or hours a vendor would need to perform a given task. Nor, for that matter, were any specific tasks identified, against which the agency could compare the vendor’s quoted labor categories. In our view, contractors enter procurements such as this one at their own risk; where a protester fails to challenge an obviously flawed evaluation scheme prior to the time for receipt of initial quotations, we will dismiss a post-award challenge to the scheme as untimely. 4 C.F.R. sect. 21.2(a)(1).  (Ball Aerospace & Technologies Corporation, B-402148, January 25, 2010) (pdf)


Sea Box, Inc., of East Riverton, New Jersey, protests the issuance of an order to Charleston Marine Containers, Inc., (CMCI) of Charleston, South Carolina, by the General Services Administration (GSA) under request for quotations (RFQ) No. 361134, for refrigerated containers and clip-on diesel generator sets.

(sections deleted)

Sea Box alleges that the "or equal" items offered by CMCI were not timely or properly added to CMCI's FSS contract and that CMCI therefore offered impermissible "open market" items that were ineligible for consideration under the RFQ. Sea Box advances several arguments in support of this allegation. First, Sea Box argues that the actual closing date of the solicitation was May 11, not May 12, and thus the "or equal" items were not on CMCI's FSS contract by the time the RFQ closed. Second, Sea Box argues that the GSA FSS contracting officer acted improperly in accepting CMCI's modification request, rendering the modification void. Finally, Sea Box argues that the May 12 contract modification was not effective until June 26, under the terms of the applicable modifications clause, and that it was improper for the agency to order items under CMCI's FSS contract before the contract modification adding those items became effective.

With regard to its first argument, Sea Box asserts that the actual closing time of the RFQ was 5 p.m. on May 11, rather than May 12, and that CMCI was ineligible to receive an order because its "or equal" items had not been added to its FSS contract by that time. This argument is based on the fact that two closing dates were listed for this procurement, May 12 on the GSA e-Buy system, and May 11 on the RFQ. The agency responds that the RFQ closed at 5 p.m. on May 12, and that Sea Box is untimely to challenge the agency's interpretation.

We conclude that Sea Box's challenge to the closing date is untimely. The conflict between the closing date listed on the GSA e-Buy system and the closing date listed on the RFQ constituted a patent ambiguity that was apparent prior to the time set for receipt of quotations. In accordance with our Bid Protest Regulations, 4 C.F.R. sect. 21.2(a) (2009), solicitation improprieties apparent prior to the time set for receipt of quotations must be filed prior to that time. Having failed to seek clarification or file a protest before the closing time of the RFQ, Sea Box may not now assert that the only legally permissible interpretation of the ambiguity is its own. Kellogg Brown & Root, Inc., B-291769, B-291769.2, Mar. 24, 2003, 2003 CPD para. 96 at 8-9. Accordingly, this basis of the protest is dismissed.  (Sea Box, Inc., B-401523; B-401523.2, September 25, 2009)  (pdf)


Our Bid Protest Regulations contain strict rules for the timely submission of protests. Under these 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. 4 C.F.R. sect. 21.2(a)(2) (2009). Moreover, the protest must set forth all information establishing the timeliness of the protest. Id. sect. 21.1(c)(6). Our timeliness rules reflect the dual requirements of giving parties a fair opportunity to present their cases and resolving protests expeditiously without unduly disrupting or delaying the procurement process. Dominion Aviation, Inc.--Recon., B-275419.4, Feb. 24, 1998, 98‑1 CPD para. 62 at 3.

Here, the agency emailed its decision informing the protester of the award to K&H on Friday, August 21, 2009, at 2:24 p.m., eastern time. The protester filed its protest with our Office on Thursday, September 3, more than 10 calendar days after the date it received the agency's notification of award to another firm. The protester, which is in the central time zone, does not contend that the agency's email was received after the firm's business hours on August 21, but bases the timeliness of its protest filing upon the fact that the protester's employee (to whom the email was directed) had left for the day and did not open the email until Monday, August 24.

For the purposes of our timeliness rules, however, the mechanical receipt of the email during the firm's regular business hours on August 21 constituted notice of the agency's award. See International Res. Group, B-286663, Jan. 31, 2001, 2001 CPD para. 35 at 5 n.7; cf. Supreme Edgelight Devices, Inc., B-295574, Mar. 4, 2005, 2005 CPD para. 58 at 3 (receipt of an agency-level protest decision on a non-business day did not constitute actual or constructive knowledge of initial adverse agency action). Because the email was available to be opened during regular business hours by Golight on August 21, we consider the email to have been received by the protester on that date. Accordingly, we find that Golight knew or should have known the basis of its protest allegations on August 21, when it received the agency's email notification of award, and, to be timely filed, the protest was required to be filed within 10 calendar days of that date, but was not. See American Office Servs., Inc. B‑290511, July 5, 2002, 2002 CPD para. 122 at 4 n.3 (protester on notice of protest basis as of date of receipt of agency email containing proposal deficiency information). Because the protest was not timely filed, it is dismissed.  (Golight Inc., B-401866, September 10, 2009) (pdf)


This Office's bid protest timeliness rules provide that protests, other than those based on alleged solicitation improprieties, shall be filed not later than 10 days after the basis of the protest is known or should have been known. 4 C.F.R. sect.21.2(a)(2) (2009). Although an exception to this rule exists with regard to protests challenging a procurement "under which a debriefing is requested and, when requested, is required," id, this exception is inapplicable where a protester's proposal is eliminated from a competition prior to award, and the protester chooses to delay receipt of a debriefing regarding that elimination until after award. See 41 U.S.C. sect. 253b(f) (2006); Federal Acquisition Regulation (FAR) sect.15.505(a)(2); United Int'l Investigative Servs., Inc., B-286327, Oct. 25, 2000, 2000 CPD para. 173 at 2-4.

Here, as discussed above, UMDI was clearly on notice that the agency was required to obtain approval from the grantees prior to awarding a consortium contract. Additionally, upon receipt of the agency's request that UMDI prepare a proposal summary, and being advised that the agency "wants to provide enough information to the grantees to be able to make informed decisions on the consortium proposal," there can be no reasonable dispute that UMDI knew or should have known that the summary would be provided to the grantees for their use in determining whether to approve a region-wide award to UMDI. Finally, by letter dated December 10, 2008, the agency unambiguously advised UMDI that its proposal had been eliminated from the competition, stating that, "elimination of the six-state consortium proposal from the competition was based on the responses received from the representatives of the grantees." Protest, Exh. F. Thereafter, UMDI chose to delay receipt of a debriefing until after award, and did not file this protest with our Office until April 7, five days after the post-award debriefing.

Here, more than 3 months prior to the time UMDI protested the agency's elimination of its six-state consortium proposal, UMDI clearly knew, or should have known, all of the information on which that portion of its protest is based. Since UMDI expressly chose to delay receipt of a debriefing regarding elimination of that proposal until after award, the exception to our timeliness rules based on receipt of a required debriefing is inapplicable. See 41 U.S.C. sect. 253b(f); FAR sect.15.505(a)(2); United Int’l Investigative Servs., Inc., supra. Accordingly, UMDI's protest challenging the agency's elimination of the six-state consortium proposal from the competition is not timely filed; that portion of the protest is dismissed.  (University of Massachusetts Donahue Institute, B-400870.3, July 15, 2009)  (pdf)


On June 8, OETI received a preaward notice, advising that the purchase order would be issued to EOI. Upon receiving that notice, the president of OETI telephoned the contracting officer (CO), who confirmed that the order would be placed with EOI, and advised OETI of the order price, $20,950. Letter from Air Force to GAO, July 6, 2009, at 1.

On June 23, OETI filed this protest with our Office. The Air Force requested that the protest be dismissed because, among other reasons, the protest was untimely filed.

OETI concedes that its protest was not filed within 10 days of the telephone call, which confirmed the identity of EOI and disclosed its higher price. The protester nevertheless argues that it was unfamiliar with the procedure for filing a protest, it did not receive a prompt response to inquiries that it made to a member of Congress, and it mistakenly believed that it should file its protest with “the OMB,” but had no success in identifying where to direct its protest within that agency. OETI argues that it promptly filed its protest with our Office once it learned of our role in deciding bid protests.

Our Bid Protest Regulations contain strict rules for the timely submission of protests. Under these rules, a protest that is not based on 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. 4 C.F.R. sect. 21.2(a)(2). Our timeliness rules reflect the dual requirements of giving parties a fair opportunity to present their cases and resolving protests expeditiously without unduly disrupting or delaying the procurement process. Dominion Aviation, Inc.--Recon., B-275419.4, Feb. 24, 1998, 98‑1 CPD para. 62 at 3. A protester’s receipt of oral information forming the basis of its protest is sufficient to start the 10-day time period running; written notification is not required. Swafford Indus., B-238055, Mar. 12, 1990, 90-1 CPD para. 268.

We dismiss the protest as untimely because it was filed more than 10 days after the protester learned of the basis for its protest. Neither a protester’s unfamiliarity with our regulations, nor its decision to wait for a response to a congressional inquiry, provides a basis for suspending our timeliness regulations. Professional Office Ctr., B‑229704, Dec. 17, 1987, 87‑2 CPD para. 607 at 2-3. Our Bid Protest Regulations are published in the Federal Register and the Code of Federal Regulations; protesters are charged with constructive notice of their contents.[4] See 4 C.F.R. sect. 21. (Optical Energy Technologies, Inc., B-401520, July 13, 2009)  (pdf)


Although, as a general rule, a protester is not required to protest that another firm should be excluded from the competition until after the firm has been selected for award, see, e.g., REEP, Inc., B-290688, Sept. 20, 2002, 2002 CPD para. 158 at 1-2 (protest that awardee had impermissible organizational conflict of interest), we have applied a different rule where a protester is aware of the facts giving rise to its allegation that another firm should be ineligible to compete and where the protester has been expressly advised that the agency has determined that the firm in question is eligible. See Abt Assocs., Inc., B-294130, Aug. 11, 2004, 2004 CPD para. 174 at 2; International Sci. & Tech. Inst., Inc., B-259648, Jan. 12, 1995, 95-1 CPD para. 16 at 3-4. In such cases, we have found that the protester cannot wait until an award has been made to file its protest, but instead must protest before the closing time for receipt of proposals. Similarly, we have found that other protests of the ground rules of how a procurement will be conducted will be treated as challenges to the terms of a solicitation. See, e.g., Domain Name Alliance Registry, B‑310803.2, Aug. 18, 2008, 2008 CPD para. 168 (post-closing argument that agency should have held discussions with protester is untimely where agency unequivocally indicated prior to closing that agency did not contemplate holding discussions).

Here, the record shows that Caddell was on notice, prior to the closing date for the second phase of the procurement, of the facts necessary to argue that Framaco did not satisfy the statutory requirements to be a United States person. In this regard, Caddell knew that the agency had evaluated Framaco's United States person status in the first phase of the procurement process and had specifically concluded that the firm satisfied the United States person requirements. Furthermore, Caddell does not dispute that it was aware of the basis of its protest allegations prior to the closing time.

Instead, Caddell argues that a challenge to Framaco's eligibility prior to award would have been premature. Caddell points out that it could not know which, if any, of the prequalified firms were going to submit offers under the second phase of the procurement, and thus a requirement to protest qualified firms prior to closing time would be wasteful and inefficient. In this regard, the protester points that, even though five firms were prequalified after the first phase, only 2 firms submitted proposals here.

We disagree that Caddell's protest would have been premature, if it had been submitted prior to award. Here, as noted above, the agency structured the procurement to allow for the prequalification of firms' eligibility as United States persons and publicly identified prequalified firms. This specifically provided offerors with an opportunity to challenge the eligibility of other potential offerors before the submission of proposals and would have allowed for the early resolution of any eligibility questions. Underlying our timeliness rules regarding solicitation improprieties is the principle that challenges which go to the heart of the underlying ground rules by which a competition is conducted, should be resolved as early as practicable during the solicitation process, but certainly in advance of an award decision if possible, not afterwards. See Armorworks Enters.. LLC, B‑400394, B‑400394.2, Sept. 23, 2008, 2008 CPD para. 176 at 7. Here, Caddell's post-award protest does not satisfy this goal or our timeliness rules.

The protest is dismissed.  (Caddell Construction Company, Inc., B-401281, June 23, 2009) (pdf)


Our Bid Protest Regulations contain strict rules for the timely submission of protests. Where a protest first has been filed with a contracting activity, any subsequent protest to our Office, to be considered timely, must be filed within 10 calendar days of "actual or constructive knowledge of initial adverse agency action." 4 C.F.R. sect. 21.2(a)(3) (2008). The term "adverse agency action" means any action or inaction on the part of a contracting agency that is prejudicial to the position taken in a protest filed there. 4 C.F.R. sect. 21.0(f). In this respect, our timeliness rules reflect the dual requirements of giving parties a fair opportunity to present their cases and resolving protests expeditiously without unduly disrupting or delaying the procurement process. Dominion Aviation, Inc.--Recon., B-275419.4, Feb. 24, 1998, 98‑1 CPD para. 62 at 3.

As noted above, the parties disagree whether RTI's January 21 request for reconsideration constituted an agency-level protest. However, even if a letter to the agency does not explicitly state that it was intended to be a protest and even if the letter was not intended to be a formal bid protest, we will nevertheless consider the letter to be a protest, where it conveys an expression of dissatisfaction and a request for corrective action. St Aerospace Engines Pte. Ltd., B-275725.3, Oct. 17, 1997, 97‑2 CPD para. 106 at 3-4; American Material Handling, Inc., B-250936, Mar. 1, 1993, 93‑1 CPD para. 183 at 2-3; Imperial Maint., Inc., B-221257, Jan. 8, 1987, 87-1 CPD para. 34 at 3. Thus, we consider RTI's January 21 letter requesting "reconsideration" of the agency's decision to reject its proposal and corrective action to constitute an agency-level protest. Imperial Maint., Inc., supra.

The initial adverse agency action in response to this agency-level protest was the agency's January 22 letter refusing to reconsider its decision to eliminate RTI's proposal from the competition. RTI's protest to our Office was filed on February 3, more than 10 days from when RTI learned of the initial adverse agency action on its agency-level protest. Therefore, RTI's protest to our Office is untimely filed under our Bid Protest Regulations, 4 C.F.R. sect. 21.2(a)(3).

As noted, RTI nevertheless argues that its protest to our Office is timely because it was filed within 10 days of the required debriefing that it obtained from the agency. Our Bid Protest Regulations provide an exception to the general, 10-day rule for filing a protest at our Office if the protest challenges "a procurement conducted on the basis of competitive proposals under which a debriefing is requested and, when requested, is required" and the protester has been afforded a required debriefing. 4 C.F.R. sect. 21.2(a)(2); M2 Global Tech., Ltd., B-400946, Jan. 8, 2009, 2009 CPD para. 13 at 3. Such a protest to our Office may be filed 10 days after the date on which the required debriefing is held. 4 C.F.R. sect. 21.2(a)(2). This exception is not applicable here, however, because RTI elected to file an agency-level protest, which is covered by 4 C.F.R. sect. 21.2(a)(3), which contains no exception to our timeliness rules based upon the request and receipt of a required debriefing. M2 Global Tech., Ltd., supra. That is, a debriefing, required or not, does not toll the requirement that a protest be filed within 10 days of adverse action on an agency-level protest. Because RTI did not learn any more information at the debriefing, given that the basis on which it has challenged the agency's action is essentially the same as that in its agency-level protest, its protest to our Office is untimely filed under our Bid Protest Regulations.  (RTI Technologies, LLC, B-401075, April 15, 2009)  (pdf)


Our Bid Protest Regulations contain strict rules for the timely submission of protests. Under these rules, a protest, of other than an alleged apparent solicitation impropriety, 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. 4 C.F.R. sect. 21.2(a)(2) (2008). Further, a matter initially protested to the contracting agency will be considered timely by our Office only if the initial agency-level protest was filed within the time limits provide by the Regulations for filing a protest with our Office unless the contracting agency imposes a more stringent time for filing, in which case the agency’s time for filing will control. 4 C.F.R. sect. 21.2(a)(3). Our timeliness rules reflect the dual requirements of giving parties a fair opportunity to present their cases and resolving protests expeditiously without unduly disrupting or delaying the procurement process. Dominion Aviation, Inc.--Recon., B-275419.4, Feb. 24, 1998, 98‑1 CPD para. 62 at 3.

Here, on November 6, 2008, M2 received a detailed letter from the Navy informing the firm that its proposal was excluded from the competitive range and the reasons for that exclusion. Specifically, M2 was informed that its technical rating was unsatisfactory with high risk, based upon ratings its proposal received under the technical approach, logistics, and management subfactors, and specifically detailed the reasons for the Navy’s unacceptable ratings under these subfactors. Among other things, M2 was informed that its proposed engine design was unproven and that it had failed to show that its proposed MEPP satisfied all of the solicitation requirements. The Navy also informed M2 that its proposed price was considerably higher than the independent government cost estimate and the other offerors’ prices.

On November 7, M2 requested a pre-award debriefing, which was telephonically provided to M2 on November 20. Thereafter, on November 26, M2 filed an agency‑level protest with the Navy, challenging the Navy’s technical rating of the firm’s proposal and failure to consider M2’s “best value” solution, albeit at a higher price. On December 11, the Navy dismissed M2’s agency-level protest as untimely, because the protest was not filed within 10 calendar days of the Navy’s November 6 letter to M2, and no additional information was provided to M2 in the Navy’s telephonic debriefing. On December 17, M2 protested to our Office.

We agree with the Navy that the November 6 letter to M2 informed the firm of the reasons its proposal was excluded from the competitive range, and that a protest of that exclusion was required to be filed within 10 calendar days of that date. In this regard, we disagree with M2 that it could not know the basis of its protest until its debriefing, when the firm allegedly learned that “the Navy did not consider the ability for a MEPP to support other Navy aircraft and the Joint Strike Fighter as part of the ‘Best Value’ criteria in the solicitation.” See Protester Response to Agency Dismissal Request, Dec. 30, 2008, at 1. As explained above, M2 knew from the November 6 letter the reasons that the Navy considered the firm’s proposal to be technically unacceptable. The Federal Acquisition Regulation (FAR) provides that protests filed with the contracting agency, of other than solicitation improprieties, must be filed no later than 10 days after the basis of protest is known or should have been known. FAR sect. 33.103(e). Because M2’s agency-level protest was not filed until November 26, more than 10 days from the firm’s receipt of the November 6 letter, the agency-level protest was not timely filed in accordance with the FAR’s timeliness rules for filing protests with the agency. Accordingly, M2’s protest to our Office subsequent to the firm’s agency-level protest cannot be considered timely and is therefore dismissed. 4 C.F.R. sect. 21.2(a)(3).

We recognize that our Bid Protest Regulations provide an exception to the general, 10-day rule for filing a protest at GAO that challenges “a procurement conducted on the basis of competitive proposals under which a debriefing is requested and, when requested, is required.” 4 C.F.R. sect. 21.2(a)(2); The Boeing Co., B-311344 et al., June 18, 2008, 2008 CPD para. 114 at 28. In those cases, where the protest is filed with our Office with respect to any protest basis which is known or should have been known either before or as a result of the requested and required debriefing, the protest cannot be filed before the debriefing date offered, but must be filed not later than 10 days after the date on which the debriefing is held. Id. This exception to the 10‑day rule, however, does not apply to a protest, such as M2’s, which is filed with the agency. As noted above, the rules for timely filing an agency-level protest are established by the FAR, and not GAO’s Bid Protest Regulations. Under the FAR, protests of other than alleged solicitation improprieties are required to be filed within 10 days after the basis of protest is known or should have been known, and the FAR does not contain a “required debriefing” exception to this 10-day rule. See FAR sect. 33.103(e). Because, under the circumstances presented here, the FAR contains a more stringent time for filing a protest with the agency than that provided for filing a protest with GAO, M2’s protest to our Office is untimely pursuant to our Bid Protest Regulations, 4 C.F.R. sect. 21.2(a)(3).  (M2 Global Technology, Ltd., B-400946, January 8, 2009) (pdf)


Specifically, Datamaxx argues that the scope of EAGLE, and of FC4 in particular, is broad and ambiguous, and therefore the protester could not have anticipated that the TISS follow-on software development effort would be solicited as a task order under EAGLE before the closing date for that solicitation. As support for its position, Datamaxx argues that TSA itself did not consider placing the TISS requirement under EAGLE until 2008, as evidenced both by TSA’s August 2007 request that Datamaxx submit a proposal and pricing for similar work from Datamaxx, and by TSA planning documents, which suggest that TSA’s consideration of EAGLE for the TISS requirement only emerged in 2008. Datamaxx asserts that similar considerations have led our Office to conclude that small businesses were timely in protesting agencies’ failures to consider small business set-asides. Protester’s Comments at 9‑10.

TSA responds that the scope of EAGLE was not vague, and therefore Datamaxx has no basis to claim that it was unable to file a protest against the failure to set aside TISS software development services before the closing date for the EAGLE RFP in November 2005. TSA argues that the specificity of the scope of the EAGLE RFP distinguishes the present situation from LBM, Inc. and other cases cited by Datamaxx.

DHS joins TSA in its defense of this protest, and adds that it made significant efforts to make awards to small businesses under the EAGLE ID/IQ multiple award program, including coordinating the terms of the EAGLE RFP with the SBA and with interested small businesses. DHS argues that the level of small business competition for the EAGLE contracts, and the resulting contract awards, demonstrate that the purposes of the Small Business Act have been met.

In response to our Office’s request for the SBA’s views on this protest, the SBA argues that TSA has not met its obligations under the Small Business Act. More specifically, the SBA argues that the FAR requires an agency to consider the suitability of an upcoming requirement for performance by small businesses first, while conducting acquisition planning. SBA Comments at 4-5 (citing FAR sections 10.001(a), 19.202-2, 19.502-2, 19.1305). If such planning reveals that the requirement should be set aside for small businesses, the SBA argues that the procuring agency must then select a procurement vehicle consistent with the requirement for a set-aside. SBA Comments at 5. Thus, in situations where the “rule of two” is met, an agency could properly solicit the requirement under an ID/IQ contract only if the requirement is set aside for capable small business contract-holders. Id. at 5. The SBA argues that procuring agencies must not be allowed to solicit requirements on an unrestricted basis under existing ID/IQ contracts, simply because no small businesses hold ID/IQ contracts, or because the small business contract-holders are not capable of performing the particular requirement. Id. at 6.

Our Office has recognized that where ID/IQ contracts have very broad or vague statements of work, it may place an unreasonable burden upon potential offerors to determine whether particular work will be acquired under a particular ID/IQ contract, and thus whether to protest the terms of the ID/IQ contract. This burden may be particularly problematic for small businesses. LBM, Inc., supra, at 5 (also holding that “it is unreasonable to require a small business that believes that one specific acquisition should continue to be set aside for small businesses to identify the possibility . . . that the specific, and relatively small, acquisition it is interested in may ultimately be transferred to the ID/IQ contracts”); see also Ocuto Blacktop & Paving Co., B-284165, Mar. 1, 2000, 2000 CPD para. 32 at 5-6 (protest filed at time of task order for landfill capping is timely where solicitations for ID/IQ contracts “do not provide clear notice that the [agency] will use these contracts to procure environmental remediation work at [particular] sites”).

Our Bid Protest Regulations contain strict rules for the timely submission of protests. By implication where the solicitation for the ID/IQ contract is not broad and vague, but rather, gives clear notice of the agency’s intention to procure particular requirements under an ID/IQ contract, any protest of those terms of the solicitation must be filed before the solicitation closing date. 4 C.F.R. sect. 21.2(a)(1) (2008). Our timeliness rules reflect the dual requirements of giving parties a fair opportunity to present their cases and resolving protests expeditiously without unduly disrupting or delaying the procurement process. Dominion Aviation, Inc.--Recon., B-275419.4, Feb. 24, 1998, 98‑1 CPD para. 62 at 3.

In our view, the terms of the EAGLE solicitation provided clear notice to Datamaxx that software development services, like those at issue here, would be acquired through EAGLE. We also note that the EAGLE solicitation was posted on Fedbizopps.gov, thus providing the public--including Datamaxx--notice of those terms. As such, in order to be timely, any challenge to the terms of the EAGLE solicitation had to be filed by the closing date, November 14, 2005.

Datamaxx also argues that our Office’s decisions indicate that it could not have filed a protest that the terms of the EAGLE RFP improperly failed to consider a set-aside for TISS follow-on work in November 2005, because such a protest would have been premature, defensive, and based only on speculation that the TSA would act contrary to law and regulation. Protester’s Comments at 11. We disagree. As stated above, the EAGLE RFP provided clear notice that software development services were within its scope, and therefore a timely protest arguing that this requirement should be reserved for small businesses would have been neither premature nor speculative. In our view, resolving disputes like these while the ID/IQ solicitation is open is key to the proper functioning of the procurement system. Alleged solicitation defects must be raised and resolved before the closing time for submission of proposals whenever possible. To hold otherwise would leave the scope of ID/IQ contracts open to challenge long after the establishment of those contracts, and would unduly disrupt and delay ordering processes that were intended to be efficient and expeditious.  (Datamaxx Group, Inc., B-400582, December 18, 2008) (pdf)


SIS also protests DOL’s evaluation of its staffing proposal. In this regard, the RFP required that the proposed site manager have “a bachelor’s degree and a minimum of three years related experience in communications systems and business administration or five years related experience.” The protester argues that this provision means that the site manager must have either: (1) a bachelor’s degree and a minimum of 3 years related experience in communications systems and business administration, or (2) 5 years related experience. Because SIS proposed to provide a site manager with 15 years of related professional experience, SIS contends that it satisfied the requirement, and that the agency improperly downgraded its staffing proposal because the site manager did not have a bachelor’s degree.

The agency, however, reads the requirements of the RFP differently. Under the agency’s reading of the specification, the site manager was required to have a bachelor’s degree plus a minimum number of years of experience--either 3 years of experience in communications systems and business administration, or 5 years of related experience. Because SIS proposed a site manager who did not have a bachelor’s degree, the agency argues that it was proper to downgrade the protester’s staffing proposal.

While we think the agency’s interpretation of this request is more persuasive than the protester’s, to the extent that SIS disagrees with the agency’s interpretation of the educational requirements required by the solicitation, we view the solicitation as patently ambiguous. See Pitney Bowes, Inc., B-294868; B-294868.2, Jan. 4, 2005, 2005 CPD para. 10 at 5. Where a solicitation contains a patent ambiguity, an offeror has an affirmative obligation to seek clarification prior to the first due date for responding to the solicitation following introduction of the ambiguity into the solicitation. 4 C.F.R. sect. 21.2(a)(1) (2008); see Dix Corp., B-293964, July 13, 2004, 2004 CPD para. 143 at 3. Where a patent ambiguity is not challenged prior to such submissions, we will dismiss as untimely any subsequent protest assertion that is based on an alternative interpretation. Kellogg Brown & Root, Inc., B‑291769, B‑291769.2, Mar. 24, 2003, 2003 CPD para. 96 at 8; Bank of Am., B‑287608, B‑287608.2, July 26, 2001, 2001 CPD para. 137 at 10. Our rule that protests of patent ambiguities must be filed prior to responsive submissions is intended to facilitate clarification of legitimate questions prior to preparation of submissions. Pitney Bowes, Inc., supra, at 5. Since this solicitation requirement could be read two ways--and since the ambiguity was apparent from the face of the solicitation--SIS may not now assert that the only permissible interpretation of this requirement is its own. We therefore think the agency reasonably downgraded SIS’s proposal of a site manager who lacks a bachelor’s degree. 
(Smart Innovative Solutions, B-400323.3, November 19, 2008) (pdf)


Notwithstanding Hart’s clear understanding of the solicitation’s facility clearance requirement, as enunciated in the November 7 amendment, Hart submitted a proposal responding to the solicitation on or before the solicitation’s November 13 closing date. On November 17, Hart filed this protest with our Office, challenging the agency’s actions prior to issuance of the solicitation amendment.

Under our Bid Protest Regulations, protests based upon alleged improprieties in a solicitation which are apparent prior to the time set for submission of initial proposals must be filed before that time. Where alleged improprieties are subsequently incorporated into a solicitation, protests must be filed prior to the time set for the next submission of proposals following the incorporation. 4 C.F.R. sect. 21.2(a)(1) (2008).

Here, Hart’s protest fails to comply with our timeliness requirements. As noted above, Hart was notified on November 7 of the amended requirement for a facility clearance. Further, at that time, Hart was aware of the agency’s prior responses to questions regarding this matter. Finally, although Hart expressed concern regarding the amended solicitation requirement, as well as its dissatisfaction with the agency’s prior responses, Hart did not protest those matters prior to the November 13 closing time; rather, Hart submitted its proposal responding to the solicitation. On this record, Hart’s November 17 protest to this Office is not timely filed.  (Hart Security Limited, B-400796.2, December 16, 2008) (pdf)


PUBLIC-PRIVATE COMPETITION

Gentex asserts that, once FPI submitted a proposal, DSCP was required to comply with the requirements of OMB Circular A-76 governing public-private competitions by, among other things, conducting a cost analysis and providing notice to other offerors that FPI was competing. See Federal Acquisition Regulation (FAR) sect. 7.302(b)(2). In related arguments, Gentex alleges that FPI enjoys various competitive advantages over commercial concerns, such as exemption from taxes; is not bound by minimum wage and other regulatory requirements applicable to the private sector; and ultimately is not contractually bound to perform, since an agreement between an agency and FPI is in the form of an intragovernmental transfer. Thus, Gentex asserts, the agency was required to “level the playing field.”

Our Bid Protest Regulations contain strict rules for the timely submission of protests. They specifically require that a protest based upon alleged improprieties in a solicitation that are apparent prior to the closing time for receipt of initial proposals be filed before that time. 4 C.F.R. sect. 21.2(a)(1) (2008). Gentex asserts that it could not raise this protest ground until it knew of FPI’s participation in the procurement. We do not agree. The acquisition of supplies from FPI is authorized by statute (18 U.S.C. sect. 4124; 10 U.S.C. sect. 4210n) and regulation (FAR sect. 8.602). These authorities make the purchase of FPI supplies mandatory where, after market research, the agency determines that the FPI items are comparable to private sector items in terms of price, quality, and time of delivery. FAR sect. 8.602(a)(3). If the item is not found to be comparable, agencies are to acquire items meeting their needs through competitive procedures and to include FPI in the solicitation process. FAR sect. 8.602(a)(4)(i), (ii). Based on these statutes, the FAR, and FPI’s catalog of items--which includes helmets--Gentex was on ample notice that FPI was a potential competitor for this requirement. Gentex also was or should have been aware that the RFP did not make any provision for application of OMB Circular A-76 procedures in the event an FPI proposal was received. Thus, to the extent Gentex believes the A-76 procedures were applicable, it was or should have been aware of this protest ground prior to the closing time for receipt of proposals. Since its protest on this ground was raised after award, it is untimely and we will not consider it.  (Gentex Corporation, B-400328; B-400328.2, September 23, 2008)  (pdf)
 


We conclude that the above issues are untimely and therefore not for consideration by our Office. Our Bid Protest Regulations contain strict rules for the timely submission of protests. These timeliness rules reflect the dual requirements of giving parties a fair opportunity to present their cases and resolving protests expeditiously without disrupting or delaying the procurement process. Peacock, Myers & Adams, B‑279327, Mar. 24, 1998, 98-1 CPD para. 94 at 3-4; Professional Rehab. Consultants, Inc., B-275871, Feb. 28, 1997, 97-1 CPD para. 94 at 2. Under these rules, a protest based on alleged improprieties in a solicitation that are apparent prior to closing time for receipt of proposals must be filed before that time. 4 C.F.R. sect. 21.2(a)(1) (2008). Where alleged improprieties do not exist in the initial solicitation, but are subsequently incorporated into the solicitation (e.g., via an amendment to the solicitation), they must be protested not later than the next closing time for receipt of proposals following the incorporation. Id.; see Cessna Aircraft Co., B-261953.5, Feb. 5, 1996, 96-1 CPD para. 132 at 16.

Here, as discussed above, the solicitation clearly stated that heating the clay would be the method used to prepare the clay for testing and that proper consistency or plasticity of the clay would be determined based upon whether the clay passed drop testing as described in the solicitation. In fact, as noted above, the agency issued an amendment which clearly placed offerors on notice of its intended testing procedures. With regard to the actual drop testing methodology, the solicitation specified that the clay would be conditioned to a point such that drop tests resulted in a depression of 25 mm. While Armorworks now contends that these procedures and testing methods were inherently unreliable and deviated from industry practice, it was incumbent upon Armorworks to raise these issues before the RFP closed since the alleged problems were apparent from the face of the solicitation. Knit-Rite, Inc., B-293088.3, Aug. 5, 2004, 2004 CPD para. 159 at 3-4 n.4.

We also find Armorworks’ challenge to the agency’s use of the intended point of aim measure to evaluate back face deformation to be an untimely challenge to the solicitation; however, a different timeliness rule applies with regard to this argument. As noted above, where an alleged solicitation impropriety is incorporated into the solicitation--e.g., by an amendment, as in this case--after proposals have already been submitted, that impropriety must be protested before the next closing time established for submitting proposals. This rule, however, is silent regarding a situation where the agency does not provide an opportunity to submit revised proposals as a consequence of the solicitation change. That, however, is the situation here.

After offerors had submitted their proposals and PDMs for ballistics testing, AMC, on April 17, issued Amendment 14, “as a clarification” regarding how the agency intended to measure back face deformation. Amendment 14 expressly stated that back face deformation “will be measured at the point of intended impact following impact.” This amendment clearly put Armorworks on notice of how the agency intended to measure and test back face deformation, but did not provide offerors with an opportunity to revise their proposals in any way. In our view, to the extent Armorworks believed that the agency’s testing methodology was flawed, Armorworks was obligated to protest this issue, which concerns the fundamental ground rules of the procurement, within 10 days of receiving the April 17 amendment.

In applying the 10-day rule, we find instructive those cases where a solicitation defect only became apparent after the closing date for receipt of proposals and we held that the alleged impropriety had to be protested not later than 10 days after the defect became apparent. See LBM, Inc., B-290682, Sept. 18, 2002, 2002 CPD para. 157 at 6-7; N&N Travel & Tours, Inc. et al., B-285164.2, B-285164.3, Aug. 31, 2000, 2000 CPD para. 146 at 7; Ocuto Blacktop & Paving Co., Inc., B-284165, Mar. 1, 2000, 2000 CPD para. 32 at 6; Vitro Servs. Corp., B-233040, Feb. 9, 1989, 89-1 CPD para. 136 at 3 n.1. These cases are similar to the situation at hand since they define the timeframe for protesting a solicitation impropriety where the solicitation closing date has passed. Since Armorworks waited until after it learned of its elimination from the competition, several months after the agency issued the clarifying amendment, to challenge the application of that amendment, its protest allegation is untimely and not for consideration by our Office.

One could argue--although Armorworks has not in fact made this argument--that, under our Bid Protest Regulations, Armorworks’ protest is timely since it was filed within 10 days of its debriefing. Pursuant to our Regulations, all protests other than solicitation improprieties must be filed not later than 10 days after the basis of protest is known or should have been known, with the exception of protests challenging a procurement conducted on the basis of competitive proposals, as in this case. In such cases, our Regulations expressly provide that “any protest basis which is known or should have been known either before the debriefing or as a result of the debriefing . . . shall not be filed before the debriefing date offered to the protester, but shall be filed not later than 10 days after the date on which the debriefing is held.” 4 C.F.R. sect. 21.2(a)(2).

Since Armorworks’ basis of protest concerns the incorporation of a solicitation impropriety through an amendment, and the agency did not establish a time for the submission of revised proposals, there might be some question as to whether the debriefing timeliness rules should apply since they broadly apply to “any basis of protest,” including those known before the debriefing.

As noted above, our timeliness rules reflect the dual requirements of giving parties a fair opportunity to present their cases and resolving protests expeditiously without unduly disrupting or delaying the procurement process. More specifically, underlying our timeliness rules regarding solicitation improprieties is the principle that challenges which go to the heart of the underlying ground rules by which a competition is conducted, should be resolved as early as practicable during the solicitation process, but certainly in advance of an award decision if possible, not afterwards. Continental Staffing, Inc., B-299054, Jan. 29, 2007, 2007 CPD para. 18 at 4-5. Such a rule promotes fundamental fairness in the competitive process by preventing an offeror from taking advantage of the government as well as other offerors, by waiting silently only to spring forward with an alleged defect in an effort to restart the procurement process, potentially armed with increased knowledge of its competitors’ position or information. Blue & Gold, Fleet, L.P. v. United States, 492 F.3d 1308, 1313-14 (Fed. Cir. 2007). It also promotes efficiency by ensuring that concerns regarding a solicitation are raised before contractor and government resources are expended in pursuing and awarding the contract, thus avoiding costly and unproductive litigation after the fact. Id.

The purpose of the exception to the timeliness rules for negotiated procurements, on the other hand, is to encourage offerors to seek, and contracting agencies to give, early and meaningful debriefings prior to the offeror’s deciding whether or not to file a protest and to preclude strategic or defensive protests--i.e., protests filed before actual knowledge that a basis for protest exists or in anticipation of improper actions by the contracting agency. The Real Estate Center, B-274081, Aug. 20, 1996, 96-2 CPD para. 74 at 2.

Because Armorworks’ allegations clearly concern the terms of the solicitation as established by the agency and therefore implicate the fundamental ground rules of the procurement, issues which were apparent to Armorworks before its elimination from the competition, its protest allegation implicates the policy considerations attendant to the solicitation impropriety timeliness rules outlined above, as opposed to those associated with the debriefing rules. We therefore find it appropriate in this case to apply the solicitation impropriety timeliness rules, consistent with our decisions holding that solicitation defects not apparent before the solicitation’s closing date must be protested not later than 10 days after the defect becomes apparent, and we expressly decline to apply the debriefing timeliness rules under these circumstances.  (Armorworks Enterprises, LLC, B-400394; B-400394.2, September 23, 2008) (pdf)


On September 2, the agency issued RFQ No. W912TF-08-T-0025 as a small business set-aside, again seeking to acquire the exercise room equipment. Among, other things, the solicitation stated: “Quotes are due: 8:00 AM on Monday, 8 September 2008.” RFQ at 3.

The agency states, and FitNet does not dispute, that FitNet did not submit a quotation responding to the most recent solicitation for the exercise room equipment. Rather, FitNet submitted a protest to our Office challenging the agency’s issuance of this solicitation.

Our Office’s business hours are from 8:30 a.m. to 5:30 p.m., eastern time. However, FitNet delayed submission of its protest until after the close of business on Friday, September 5; instead it transmitted the protest to our Office shortly before 6:30 a.m. on Monday, September 8.

Our Bid Protest Regulations contain strict rules for the timely submission of protests. They specifically require that a protest based upon alleged improprieties in a solicitation that are apparent prior to the closing time for receipt of initial proposals be filed before that time. 4 C.F.R. sect. 21.2(a)(1) (2008). Our timeliness rules reflect the dual requirements of giving parties a fair opportunity to present their cases and resolving protests expeditiously without unduly disrupting or delaying the procurement process. Dominion Aviation, Inc.--Recon., B-275419.4, Feb. 24, 1998, 98‑1 CPD para. 62 at 3.

We have held that, when a protest is transmitted to our Office (either by e-mail or fax) outside of business hours, we will consider the protest to have been filed at the time our Office next opens for business following receipt of the submission. Guam Shipyard, B-294287, Sept. 16, 2004, 2004 CPD para. 181 at 2. Here, as discussed above, FitNet’s protest was filed after the closing time established for submission of quotations. Accordingly, the protest is untimely.  (FitNet Purchasing Alliance, B-400553, September 24, 2008)  (pdf)


Award Without Discussions Based on Initial Quotes

DNAR argues that the agency could not properly reaward this contract without holding discussions with DNAR--as it did with NeuStar prior to the initial award decision--and without allowing DNAR to submit a revised proposal addressing certain weaknesses identified by the agency during the debriefing DNAR received after the initial award decision. Alternatively, DNAR argues that the agency could not properly ignore the discussions that took place with NeuStar during the initial competition. Both the agency and the intervenor argue that these contentions are untimely at this juncture because DNAR has long been on notice that the agency was not planning to hold discussions. We agree.

In general, a protest based upon alleged improprieties in a solicitation that are apparent prior to the closing time for receipt of initial quotes or proposals must be filed before that time. Bid Protest Regulations, 4 C.F.R. sect. 21.2(a)(1) (2008); see also Continental Staffing, Inc., B- 299054, January 29, 2007, 2007 CPD para. 18 at 4-5. We think this protest issue, which challenges the way in which the agency will conduct its corrective action and recompetition, is analogous to a challenge to the terms of a solicitation.

As described above, the February 6 letter from the agency to DNAR expressly identified the information the protester should submit for agency review during the reevaluation. Specifically, the letter explained that: “Pursuant to [the] corrective action [DOC] is undertaking in the referenced solicitation, I request that you provide the Afilias 2005-2006 Financial Statements . . . Also, please send a copy of your entire proposal dated July 30, 2007.” AR, Tab 13, Letter from DOC to DNAR, Feb. 6, 2008. The letter nowhere mentions the possibility that the agency will open discussions, or seek additional submissions.

DNAR received this letter already knowing certain facts about the initial round of this procurement. For example, DNAR knew that the agency had engaged in discussions with NeuStar during the initial competition; in fact, DNAR raised this issue in its initial protest to our office. Protest, Nov. 13, 2007, at 8 (“[A]t the same time NTIA was eliminating DNAR from the competitive range . . . NTIA allowed NeuStar to revise its proposal to correct its marketing approach.”). DNAR also knew from its November 7, 2007, debriefing that the agency had identified certain weaknesses in its quote--and it could reasonably deduce that these weaknesses were not likely to be addressed by the resubmission of its original quote. In addition, the February 6 letter invited DNAR to submit the financial statements it had omitted previously, but did not invite further revisions to its quote. These things together strongly suggest DNAR knew, or certainly should have known, that the agency would complete its reevaluation without holding discussions--thus, providing the basis for protest prior to award.

While the protester argues that the February 6 letter was insufficient to put DNAR on notice that the agency’s corrective action would not include an opportunity for discussions, we need not reach this issue because the exchange between DNAR and the agency on April 14 should have removed all doubt. Specifically, DOC advised counsel for DNAR that the agency intended to “award by the end of the month.” See Email from DOC to DNAR Counsel, Apr. 14, 2008. In response, DNAR expressed its concerns about this issue in emails dated April 18 and April 25. These emails, quoted above, expressly argued that the agency should be holding discussions with DNAR (and hence giving it an opportunity to revise its proposal), before making a new selection decision. Nothing the agency said in response, including its eventual silence, can be construed as accepting DNAR’s view on this matter.

On this record, we think DNAR knew or should have known that the agency did not intend to hold discussions with DNAR, and, under the circumstances here, we think that DNAR could not reasonably await the agency’s second award decision without raising any challenge. Consequently, we conclude that the protester’s allegations regarding the agency’s decision not to hold discussions with DNAR, and to proceed with award to NeuStar without remedying the fact that agency held discussions with NeuStar during the earlier round of this procurement, are untimely.

To the extent the protester also argues that the agency could not disregard the discussions that were conducted with NeuStar in the earlier round of this procurement, we disagree. Contracting officials in negotiated procurements have broad discretion to take corrective action where the agency determines that such action is necessary to ensure fair and impartial competition. Patriot Contract Servs. LLC et al., B-278276.11 et al., Sept. 22, 1998, 98-2 CPD para. 77 at 4. An agency’s discretion in the area of corrective action extends to deciding the scope of proposal or quote revisions, and there are circumstances where an agency may reasonably decide to limit the revisions offerors may make to their proposals or quotes. See, e.g., Computer Assocs. Int’l, B-292077.2, Sept. 4, 2003, 2003 CPD para. 157 at 5. Here, we think the agency’s actions reasonably addressed the advantage provided to NeuStar as a result of the earlier discussions.  (Domain Name Alliance Registry, B-310803.2, August 18, 2008)  (pdf)


Prior to the submission of the agency’s report, the Air Force and Northrop Grumman requested that we summarily dismiss a substantial portion of Boeing’s protest as untimely. The agency and intervenor argued that some of Boeing’s protest grounds were untimely challenges to alleged, apparent solicitation improprieties. They also argued that some of Boeing’s challenges to the agency’s evaluation of proposals were untimely because Boeing was allegedly aware of the bases of these protest grounds during the competition, but did not protest until after award and the firm’s receipt of a post‑award debriefing.

Our Bid Protest Regulations contain strict rules for the timely submission of protests. These timeliness rules reflect the dual requirements of giving parties a fair opportunity to present their cases and resolving protests expeditiously without disrupting or delaying the procurement process. Peacock, Myers & Adams, B‑279327, Mar. 24, 1998, 98-1 CPD para. 94 at 3-4; Professional Rehab. Consultants, Inc., B-275871, Feb. 28, 1997, 97-1 CPD para. 94 at 2. Under these rules, a protest based on alleged improprieties in a solicitation that are apparent prior to closing time for receipt of proposals must be filed before that time. 4 C.F.R. sect. 21.2(a)(1). Protests based on other than alleged improprieties in a solicitation must be filed not later than 10 days after the protester knew or should have known of the basis for protest, whichever is earlier. 4 C.F.R. sect. 21.2(a)(2). Our regulations provide an exception to this general 10-day rule for a protest that challenges “a procurement conducted on the basis of competitive proposals under which a debriefing is requested and, when requested, is required.” Id. In such cases, as here, with respect to any protest basis which is known or should have been known either before or as a result of the requested and required debriefing, the protest cannot be filed before the debriefing date offered, but must be filed not later than 10 days after the date on which the debriefing is held. Id.; see Bristol-Myers Squibb Co., B‑281681.12, B-281681.13, Dec. 16, 1999, 2000 CPD para. 23 at 4.

We did not, and do not now, agree with the Air Force and Northrop Grumman that Boeing’s protest is a challenge to the ground rules established by the RFP for this procurement. We find that Boeing, rather than objecting to any of the RFP’s requirements or evaluation criteria, is instead protesting that the Air Force failed to reasonably evaluate proposals in accordance with the RFP’s identified requirements and evaluation criteria. We also do not agree with the agency and intervenor that, because Boeing was informed during the competition of the agency’s view of the merits of its proposal and/or how the proposals were being evaluated, Boeing was required to protest the agency’s evaluation or evaluation methodology prior to award and to the protester’s receipt of its required debriefing. Even where the protester is apprised of agency evaluation judgments with which it disagrees or where it believes the evaluation is inconsistent with the solicitation’s evaluation scheme, our Bid Protest Regulations require that these protest grounds be filed after the receipt of the required debriefing.[41] See 4 C.F.R. sect. 21.2(a)(2); see also 61 Fed. Reg. 39039, 39040 (July 26, 1996) (“to address concerns regarding strategic or defensive protests, and to encourage early and meaningful debriefings,” a protester shall not file an initial protest prior to its required debriefing); Rhonda Podojil--Agency Tender Official, B‑311310, May 9, 2008, 2008 CPD para. 94 at 3 (application of debriefing exception to A‑76 competitions conducted on the basis of competitive proposals). 
(The Boeing Company, B-311344; B-311344.3; B-311344.4; B-311344.6; B-311344.7; B-311344.8; B-311344.10; B-311344.11, June 18, 2008) (pdf)


Our timeliness rules reflect the dual requirements of giving parties a fair opportunity to present their cases and resolving protests expeditiously without unduly disrupting or delaying the procurement process. Air Inc.--Recon., B-238220.2, Jan. 29, 1990, 90-1 CPD para. 129 at 2. In order to prevent these rules from becoming meaningless, exceptions are strictly construed and rarely used. Id. The “good cause” exception is limited to circumstances where some compelling reason beyond the protester’s control prevents the protester from filing a timely protest. Dontas Painting Co., B-226797, May 6, 1987, 87-1 CPD para. 484 at 2. The significant issue exception is limited to untimely protests that raise issues of widespread interest to the procurement community, and which have not been considered on the merits in a prior decision. Schleicher Cmty. Corps. Ctr., Inc., B-270499.3 et al., Apr. 18, 1996, 96-1 CPD para. 192 at 7. Here, Goel has offered no compelling reason for its failure to protest prior to bid opening, thus the “good cause” exception has no application. We also see nothing in the record to suggest that Goel’s protest issue is of widespread interest to the procurement community warranting its resolution in the context of an otherwise untimely protest. As a consequence, we decline to address this protest issue here. (Goel Services, Inc., B-310822.2, May 23, 2008) (pdf)


While, as discussed above, our Bid Protest Regulations provide that a protest to our Office filed within 10 days after resolution of an agency-level protest is timely, even when this is after the closing date, that protest must raise the same issue as the agency-level protest. A protest raising a new issue cannot claim the benefit of the earlier agency-level protest for timeliness purposes. See, e.g., Rochester Optical Mfg. Co., B- 292137.2, Mar. 16, 2004, 2004 CPD para. 120 at 4 n.3 (protest filed within 10 days of decision on agency-level protest is untimely where protest is filed after closing date and raises a new issue). Therefore, MTC’s April 10 agency-level protest, which did not raise the set-aside issue, has no bearing on the timeliness of this protest, and cannot provide a vehicle for viewing MTC’s protest here as timely. (Masai Technologies Corporation, B-400106, May 27, 2008) (pdf)


Our Bid Protest Regulations contain strict rules for the timely submission of protests. These timeliness rules reflect the dual requirements of giving parties a fair opportunity to present their cases and resolving protests expeditiously without disrupting or delaying the procurement process. Professional Rehab. Consultants, Inc., B-275871, Feb. 28, 1997, 97-1 CPD para. 94 at 2. Under these rules, a protest such as the ATO’s, based on other than alleged improprieties in a solicitation, must be filed not later than 10 days after the protester knew or should have known of the basis for protest, whichever is earlier. 4 C.F.R. sect. 21.2(a)(2) (2007). An exception to this general rule is a protest that challenges “a procurement conducted on the basis of competitive proposals under which a debriefing is requested and, when requested, is required.” Id. In such cases, with respect to any protest basis which is known or should have been known either before or as a result of the debriefing, the protest must be filed not later than 10 days after the date on which the debriefing is held. The MIL Corp., B-297508, B-297508.2, Jan. 26, 2006, 2006 CPD para. 34 at 5.

In addressing the timeliness of the ATO’s protest, we first turn to the question of when the ATO knew or should have known the basis for protest. In this regard, the ATO argues that in evaluating the technical proposal of the agency tender, the Army deviated from the RFP’s evaluation factors and subfactors, which established the requirements of acceptability. Specifically, the protester alleges that during discussions, the Army made clear that, in order to be found technically acceptable, the agency tender was required to increase its staffing to meet performance standards exceeding those set forth in the RFP. The ATO generally alleges that the increase in costs associated with meeting these higher standards resulted in the agency tender having a higher adjusted price than that of Sodexho’s proposal. Protest at 1, 3. Since the allegedly higher standards were conveyed by the Army through discussions, the ATO knew or should have known that the Army’s imposition of allegedly higher standards had a prejudicial effect when she learned the results of the cost comparison on February 12, indicating that Sodexho had prevailed based on price. The protest, however, was not filed until March 3, more than 10 days after February 12. Therefore, in order for the ATO’s protest to be timely, it must fall within the debriefing exception noted above. As stated previously, this exception applies only where the debriefing provided is in connection with “a procurement conducted on the basis of competitive proposals under which a debriefing is requested and, when requested, is required.” 4 C.F.R. sect. 21.2(a)(2). In addressing this question, we note that the term “competitive proposals” is not defined by our Bid Protest Regulations, nor by statute or regulation. See Systems Plus, Inc. v. United States, 68 Fed. Cl. 206 (2005); The MIL Corp., supra, at 6. However, we have previously determined that the use of negotiated procedures in accordance with Federal Acquisition Regulation (FAR) Part 15 and as evidenced by the issuance of an RFP, constitutes a procurement conducted on the basis of competitive proposals for purposes of this exception to our timeliness rules. The MIL Corp., supra; Professional Rehab. Consultants, Inc., supra. Here, consistent with the A-76 competition process, the Army expressly incorporated and used FAR Part 15 procedures as the framework for the A-76 competition. In this regard, pursuant to the competition process established by the Circular, the Army issued a solicitation seeking “proposals” (the RFP), which provided for a lowest‑priced, technically acceptable source selection in accordance with FAR sect. 15.101-2. The Army held discussions with the protester and private-sector offerors in accordance with FAR sect. 15.306, which resulted in revisions to the agency tender and private-sector proposals consistent with FAR sect. 15.307, and after announcing the results of the cost comparison, consistent with FAR Part 15, the Army provided the protester and Sodexho, at their request, with debriefings. As a consequence, we conclude that the A-76 competition here was conducted on the basis of “competitive proposals.”

The next question is whether the debriefing was a “required” debriefing for the purpose of applying our timeliness rules. In this regard, when a contract is awarded on the basis of “competitive proposals,” 10 U.S.C. sect. 2305(b)(5)(A), implemented through FAR sect. 15.506(a)(1), provides that “an unsuccessful offeror, upon written request received by the agency within 3 days after the date on which the unsuccessful offeror receives the notification of the contract award, shall be debriefed and furnished the basis for the selection decision and contract award.” The agency and intervenor argue that the debriefing which the contracting officer provided the ATO here was not a “required” debriefing for several reasons. Both point to the fact that the Circular does not reference the type of required debriefing contemplated by FAR sect. 15.506, but merely requires agencies to offer a debriefing “in accordance with FAR sect. 15.503,” which pertains solely to award notice requirements for unsuccessful offerors. OMB Cir. A-76, Attach. B para. D.6.d; FAR sect. 15.503 Notifications to Unsuccessful Offerors. The intervenor further argues that the ATO’s debriefing was not required because such debriefings are limited to “offerors,” and the ATO is not an “offeror.” In support of this contention, the intervenor notes that the ATO cannot be an offeror, since if the agency tender were to prevail in the competition, it would not result in the award of a contract, citing our decision in Dan Duefrene et al., B-293590.2 et al., Apr. 19, 2004, 2004 CPD para. 82 at 5. The intervenor and the agency further argue that, even if the possibility of a required debriefing existed, the debriefing provided to the ATO would not qualify, since it was not timely requested. In addressing the specific question of whether the debriefing at issue was a required debriefing for the purpose of establishing timeliness, we first address the general assertion by the agency and the intervenor that debriefings are not required in the context of an A-76 competition. We reject this contention for the simple reason that the statutory debriefing requirements established by 10 U.S.C. sect. 2305(b) and FAR Part 15 hinge on whether an agency is making an award on the basis of “competitive proposals.” Where an agency makes its selection decision under an A-76 competition on the basis of “competitive proposals,” as in this case, we think that the statutory and regulatory debriefing scheme is invoked, notwithstanding the more limited debriefing guidance set forth in the Circular.

Turning to the question of whether the public-sector competitor in an A-76 competition can rely on the debriefing exception to our timeliness rules for the purpose of establishing the timeliness of its protest at our Office despite the fact that it is not technically an “offeror,” we note that the standing of the public-sector competitor to protest public-private competitions conducted pursuant to A-76 has a lengthy history. In addressing the various issues in this regard, GAO has consistently recognized the importance of establishing, in the conduct of A-76 competitions, a level playing field between public and private-sector competitors, a principle unanimously agreed to by the Congressionally-chartered Commercial Activities Panel. Commercial Activities Panel, Final Report: Improving the Sourcing Decisions of the Government (Apr. 2002) at 10 (stating “[t]he Panel believes that in order to promote a more level playing field on which to conduct public-private competitions, the government needs to shift . . . to a FAR-type process under which all parties compete under the same set of rules”). Consistent with this principal, it is our intent to apply our timeliness rules to public‑ and private-sector protesters of A-76 competitions in an even-handed manner. As a consequence, where an agency conducts an A-76 competition on the basis of competitive proposals, as in this case, thereby triggering the debriefing requirements established by statute and the FAR, we will interpret those provisions as applying equally to public-sector competitors for the purpose of invoking the debriefing exception to our timeliness rules. For the same reason, however, when protesting the results of an A-76 competition, in order to fall within the debriefing exception to our timeliness rules, a public-sector competitor, like its private-sector counterpart, will be held to compliance with the rules necessary to establish its debriefing as a “required” debriefing. As noted above, a debriefing is only required where it is timely requested--within 3 days of receiving notice of the award decision. In this case, the ATO’s written request for the debriefing was made 7 days after receiving notice of the award decision. We therefore conclude that, by its terms, the debriefing exception does not apply. Absent application of the debriefing exception, the ATO was required to file its protest within 10 days of when it knew or should have known its basis of protest; because the protest was filed more than 10 days later, it is untimely.  (Rhonda Podojil--Agency Tender Official, B-311310, May 9, 2008) (pdf)


Apptis first protests that an organizational conflict of interest (OCI)[5] existed in connection with the evaluation due to DISA’s use of a contractor employee, C.F.,[6] as an SSEB evaluator. Specifically, Apptis alleges that at the time he evaluated offerors’ proposals, C.F. was employed by Shim Enterprises, Inc., a support services contractor for the DISA CS site in Ogden, Utah. Shim, the protester contends, was responsible for performing systems management for DISA at the time and location that a service outage occurred, and for which the equipment and/or support of Apptis’ primary subcontractor here, EMC, was alleged to have been at fault (the so-called “Fairchild chip issue”). Thus, Apptis asserts, Shim had a motivation to deflect blame to EMC and avoid any responsibility it may have had for the service outage problem that occurred. Apptis argues that because the agency used as an evaluator an employee of a firm that had an impermissible OCI, the agency’s evaluation of proposals was unreasonable and the award to ViON improper. The agency argues that Apptis’s protest regarding Shim’s alleged OCI is untimely. In support of its position, the agency contends that the RFP gave offerors notice of the fact that DISA planned to utilize Shim in the evaluation. Further, DISA asserts that the protester was aware of Shim’s role as DISA’s support services contractor for the Ogden site, and had interacted directly with Shim regarding the Fairchild chip failure incident. The agency contends that because Apptis was aware of the potential OCI involving Shim during the solicitation process, but did not protest this issue until after the closing time, the issue is untimely. We agree.

Our Bid Protest Regulations contain strict rules requiring timely submission of protests. Under these rules, protests based upon alleged improprieties in a solicitation which are apparent prior to bid opening or the time set for receipt of initial proposals must be filed prior to bid opening or the time set for receipt of initial proposals. 4 C.F.R. sect. 21.2(a)(1) (2007). Similarly, protests not based on solicitation improprieties must be filed within 10 days after the basis of protest is known or should have been known, whichever is earlier. 4 C.F.R. sect. 21.2(a)(2). As a general rule, a protester is not required to protest that another firm has an impermissible OCI until after the agency has made an award determination. REEP, Inc., B-290688, Sept. 20, 2002, 2002 CPD para. 158 at 1-2. A different rule applies, however, where a solicitation informs offerors that the agency plans to utilize the services of a third-party contractor to assist in the evaluation of proposals, and the protester knew or should have known, by means of due diligence, that the nongovernmental entity may have, as alleged here, impaired objectivity. In such cases, the protester cannot wait until an award has been made to file its protest of an impermissible OCI, but instead must protest before the closing time for receipt of proposals. See Abt Assocs., Inc., B-294130, Aug. 11, 2004, 2004 CPD para. 174 at 2. Here, the RFP expressly identified Shim as a nongovernmental evaluator of offerors’ proposals, RFP sect. L at 57, and the protester itself indicates that information regarding Shim’s role as DISA’s support services contractor for the Ogden location was readily available at Shim’s website. Protester’s Comments, Mar. 26, 2007, exh. A, Printout of Shim Enterprise webpage. Moreover, EMC employees had frequent and regular dealings with C.F. at the Ogden site, dealt directly with C.F. regarding the Fairchild chip failure incident, and were aware that C.F. was a Shim employee. Protester’s Comments, Mar. 26, 2007, Second Decl. of J.S.; AR, Apr. 17, 2007, exh. 1, Decl. of M.H.; exh. 2, Decl. of C.W. We think that, given EMC’s prior work for DISA at the Ogden site, and that EMC was Apptis’s primary subcontractor, Apptis knew or should have known of Shim’s role as the DISA support services contractor for the Ogden site where EMC had had the Fairchild chip failure issue. Apptis’s failure to protest the alleged OCI associated with Shim’s role in the evaluation of offerors’ proposals before the closing date for receipt of proposals makes this issue untimely.  (Apptis, Inc., B-299457; B-299457.2; B-299457.3, May 23, 2007) (pdf)


As a final matter, CAMSS argues that the ASI brand name product itself fails to meet certain salient characteristics included in the solicitation. This ground of protest is untimely. The purpose of a solicitation’s statement of salient characteristics, as set out in FAR sect. 11.104(b), is to define the minimum characteristics of the brand name product that an alternative “equal” product must meet. Thus, by definition, the salient characteristics should be derived from, and should reflect, the essential characteristics that, in the agency’s view, the brand name product possesses. Accordingly, a contention that the solicitation-identified brand name item does not meet the salient characteristics is an argument that the solicitation is defective, because the solicitation represents that the brand name product possesses the salient characteristics listed, when, in the protester’s view, it does not. Any alleged inconsistency between a brand name item and the salient characteristics used to define an “or equal” product thus must be protested prior to the closing time for receipt of offers, or in this case, quotations--consistent with our standard rule for raising challenges to solicitation improprieties. 4 C.F.R. sect. 21.1(a)(1); M/RAD Corp., B-248146, July 29, 1992, 92-2 CPD para. 61 at 3; VTEC Labs., Inc., B-245481, Dec. 26, 1991, 91-2 CPD para. 581 at 3. (CAMSS Shelters, B-309784; B-309784.2, October 19, 2007) (pdf)


Finally, K9 contends that the agency structured the evaluation, including mileage costs and travel time, in such a manner that, given its location, it could not realistically compete from a price standpoint, and that its status as a disabled, veteran-owned business was not given consideration in the selection process. Under our Regulations, protests based on alleged improprieties in a solicitation that are apparent prior to the stated deadline for submitting offers must be filed before that time. 4 C.F.R. sect. 21.2(a)(1). Here, the RFP, as amended, clearly set forth the evaluation provisions about which the protester complains, and the solicitation was not set aside for service-disabled veterans. Therefore, it was apparent on the face of the amended solicitation how the agency would evaluate proposals, and that an offeror’s status as a service-disabled veteran would not be a factor in the evaluation process. This being the case, any protest by K9 challenging the evaluation provisions had to be filed prior to the extended April 23 closing date for receipt of revised proposals. Since K9 did not protest until June 27, its protest on these issues is untimely, and will not be considered.  (K9 Operations, Inc.,  B-299923, August 6, 2007) (pdf)


With that in mind, we must determine whether the ambiguity is latent or patent since, if patent, it would have had to be protested prior to the closing date for the submission of proposals in order to be considered timely. Ashe Facility Servs., Inc., B-292218.3; B-292218.4, Mar. 31, 2004, 2004 CPD para. 80 at 11; see 4 C.F.R. sect. 21.2(a)(1). A patent ambiguity exists where the solicitation contains an obvious, gross, or glaring error (e.g., where the solicitation provisions appear inconsistent on their face), while a latent ambiguity is more subtle. Ashe Facility Servs., Inc., supra. Since Singleton’s interpretation of the RFP did not directly conflict with any of the other solicitation provisions, and the ambiguity came to light in the context of the agency’s past performance evaluation, we conclude that the ambiguity here was latent rather than patent. Singleton’s protest is thus timely. Id. As indicated, the agency intended the solicitation to provide that only the offeror’s past performance, and not that of proposed subcontractors, would be considered by the agency in evaluating proposals and in making its source selection. The protester states that, had it been aware prior to the closing date for the receipt of proposals of the agency’s intended meaning, it would have protested the propriety of that aspect of the RFP. Protester’s Comments at 1. Given the protester’s position here, and the indicated intent of FAR sect. 15.305(a)(2)(iii)--which by using the term “should” advises agencies that they should consider in their evaluations the past performance of proposed “subcontractors that will perform major or critical aspects of the requirement” unless they have a reasonable basis for not doing so--the propriety of the agency’s decision not to follow the approach advised in the FAR cannot be assumed. In our view, there is thus a reasonable possibility that a timely protest would have ultimately led to the agency’s adopting the FAR’s recommended approach. Even if it did not, so that the procurement was conducted under the agency’s current approach (but unambiguously stated), the protester would have had an opportunity to submit a proposal consistent with that approach. In view of the potentially different outcome associated with this necessarily speculative analysis, we find a reasonable possibility that the protester was prejudiced by the agency’s actions. (Singleton Enterprises, B-298576, October 30, 2006) (pdf)


Our Bid Protest Regulations require that protests not based upon alleged improprieties in a solicitation be filed not later than 10 days after the basis of protest is known or should have been known. 4 C.F.R. sect. 21.2(a)(2) (2005). More specifically, a protest based upon information provided to the protester at a statutorily-required debriefing is generally untimely if filed more than 10 days after the debriefing. The New Jersey & H St. Ltd. P’ship, B-288026, B-288026.2, July 17, 2001, 2001 CPD para. 125 at 2; Clean Venture, Inc., B-284176, Mar. 6, 2000, 2000 CPD para. 47 at 4 n. 5. Here, during the preaward debriefing, the protester was informed of the specific critical failures upon which its bid sample reliability rating was based, including the broken bolt critical failure which it now challenges. Subsequent to the debriefing, however, the agency reinstated Remington in the competitive range and continued to consider Remington’s proposal for contract award. It is clear, we think, that once the Army reinstated Remington’s proposal in the competitive range of offerors to be further considered for award, there was no agency action prior to the award determination that was prejudicial to, and protestable by, Remington. In fact, had Remington filed a protest here challenging the agency’s reliability testing after being reinstated in the competitive range and before award, the protest would have been speculative and premature because it would have merely anticipated prejudicial agency action. See Computer Assocs. Int’l, Inc., B-292077.2, Sept. 4, 2003, 2003 CPD para. 157 at 4; Parcel 47C LLC, B-286324, B-286324.2, Dec. 26, 2000, 2001 CPD para. 44 at 10 n.13. Thus, we find Remington’s protest here, filed within 10 days after Remington was advised of the award decision, to be timely. (Remington Arms Company, Inc., B-297374; B-297374.2, January 12, 2006) (pdf)


Our Bid Protest Regulations contain strict rules for the timely submission of protests. These timeliness rules reflect the dual requirements of giving parties a fair opportunity to present their cases and resolving protests expeditiously without disrupting or delaying the procurement process. Peacock, Myers & Adams, B-279327, Mar. 24, 1998, 98-1 CPD para. 94 at 3-4; Professional Rehab. Consultants, Inc., B-275871, Feb. 28, 1997, 97-1 CPD para. 94 at 2. Under these rules, a protest such as MIL’s, based on other than alleged improprieties in a solicitation, must be filed not later than 10 days after the protester knew or should have known of the basis for protest, whichever is earlier. 4 C.F.R. sect. 21.2(a)(2) (2005). An exception to this general rule is a protest that challenges “a procurement conducted on the basis of competitive proposals under which a debriefing is requested and, when requested, is required.” Id. In such cases, with respect to any protest basis which is known or should have been known either before or as a result of the debriefing, the protest must be filed not later than 10 days after the date on which the debriefing is held. Id. Our determination of the timeliness of MIL’s organizational conflict of interest issues therefore involves a twofold analysis: (1) determining when MIL knew, or should have known, its basis for protest here; and (2) determining whether MIL’s protest involves a procurement conducted on the basis of competitive proposals under which a debriefing was required. We find that MIL knew or should have known this basis for protest as of the date it received notice of the award to Anteon, September 29. As the incumbent IT help-desk services contractor, MIL was fully aware of Anteon’s duties and responsibilities as the program management services contractor with the Navy; it was this familiarity that provided MIL with the underlying factual basis for its assertions that Anteon both had superior access to information during the solicitation process, and would suffer from impaired objectivity during contract performance. Further, the agency asserts--and MIL does not deny--that the organizational conflict of interest issues here were not raised or even mentioned at the debriefing provided to MIL. While the protester now argues that “it was at the debriefing that MIL learned that the Navy made its award to an offeror with an apparent [organizational conflict of interest] without evaluating the [organizational conflict of interest] and without imposing any appropriate mitigation,” MIL Response to Agency Dismissal Request, Nov. 7, 2005, at 5, we fail to see how MIL could first have become aware of this as a result of the debriefing when it asked no questions and did not even raise the issue. Rather, we find that the facts which provided MIL with its basis of protest here were known to it as of the September 29 award notification date. Accordingly, since MIL’s protest was not filed until October 24, we find that MIL did not protest the organizational conflict of interest issue within 10 days of when the protester knew or should have known of the basis of protest. (The MIL Corporation, B-297508; B-297508.2, January 26, 2006) (pdf)


Where a protest initially has been filed with a contracting activity, any subsequent protest to our Office, to be considered timely under our Bid Protest Regulations, must be filed within 10 days of actual or constructive knowledge of initial adverse agency action. 4 C.F.R. sect. 21.2(a)(3). The term “adverse agency action” is defined in our Bid Protest Regulations to include the agency’s proceeding with the receipt of proposals in the face of the protest. 4 C.F.R. sect. 21.0(f); Carlisle Tire & Rubber Co., B-235413, May 12, 1989, 89-1 CPD para. 457 at 2. Thus, it is our general view that once the contracting activity proceeds with accepting offers, the protester is on notice that the contracting activity will not undertake the requested corrective action; consequently, timeliness is measured from this point rather than from the receipt of a subsequent formal denial of the agency-level protest. Scopus Optical Indus., B-238541, Feb. 23, 1990, 90-1 CPD para. 221 at 2. Since Lifecare learned of the initial adverse agency action on August 9, but did not file its protest with our Office until August 22, more than 10 days later, its protest is untimely under our Bid Protest Regulations. 4 C.F.R. sect. 21.2(a)(3). These timeliness rules reflect the dual requirements of giving parties a fair opportunity to present their cases and of resolving protests expeditiously without unduly disrupting or delaying the procurement process. Air Inc.--Recon., B-238220.2, Jan. 29, 1990, 90-1 CPD para. 129 at 2. (Lifecare Management Partners, B-297078; B-297078.2, November 21, 2005) (pdf)


Wescam maintains that the contentions presented in its comments are not untimely because they merely provide further support for its general protest contentions that the Navy improperly failed to consider its alternate proposals and that the agency’s price evaluation was unreasonable, and that the issues raised therefore are not independent protest grounds. Wescam’s reliance on general articulations of its bases of protest is misplace. Where a protester raises a broad ground of protest in its initial submission but fails to provide details within its knowledge until later, so that a further response from the agency would be needed to adequately review the matter, these later, more specific arguments and issues cannot be considered unless they independently satisfy the timeliness requirements under our Bid Protest Regulations. Biospherics, Inc., B-285065, July 13, 2000, 2000 CPD para. 118 at 12-13. In this regard, we have found supplemental protest grounds untimely which present “examples” of flaws in the agency’s evaluation generally alleged in the initial protest since such staggered presentation of “examples,” each of which involves different factual circumstances and requires a separate explanation from the agency, constitutes precisely the piecemeal presentation of issues that our timeliness rules do not permit. QualMed, Inc., B-257184.2, Jan. 27, 1995, 95-1 CPD para. 94 at 12-13. (L-3 Systems Company Wescam Sonoma, Inc., B-297323, December 3, 2005) (pdf)


As an initial matter the Air Force argues that the challenges relating to the December 2004 sole-source award to OSS should be dismissed as untimely. The agency maintains that the award was announced on December 6, 2004 on the official website for the Department of Defense, referred to as DefenseLink -- http://www.defenselink.mil/ -- and that the protesters should have challenged the award within 10 days of this announcement, yet they waited more than 6 months to file their protests. In essence, the Air Force argues that the award announcement on DefenseLink placed the protesters on constructive notice of the sole-source award and that the timeliness of their protests should be measured from this date. We disagree.In support of its contention that the protesters were on constructive notice by virtue of the DefenseLink posting, the Air Force points to our decisions holding that publication in the Commerce Business Daily (CBD) or on the FedBizOpps website (which has replaced the CBD) placed protesters on constructive notice of an agency’s contract actions. For example, we have recognized that publication in the CBD of an agency’s intent to enter into a sole-source contract constitutes constructive notice of that proposed contract action. See Fraser-Volpe Corp., B‑240499 et al., Nov. 14, 1990, 90-2 CPD para. 397 at 3; S.T. Research Corp., B-232751, Oct. 11, 1988, 88-2 CPD para. 342 at 1. Similarly, we have held that publication on the FedBizOpps website places prospective contractors on constructive notice of contract awards, such that protests of the awards must be filed within 10 days of publication. CBMC, Inc., B‑295586, Jan. 6, 2005, 2005 CPD para. 2 at 2. These cases, however, are inapposite. The doctrine of constructive notice creates a presumption of notice in law that cannot be rebutted. See, e.g., Townsend v. Little and Others, 109 U.S. 504, 511 (1883) (“constructive notice is defined to be in its nature no more than evidence of notice, the presumption of which is so violent that the court will not even allow of its being controverted”). By definition the doctrine imputes knowledge to a party without regard to the party’s actual knowledge of the matter at issue. Given the severity of such a rule, our decisions holding protesters to constructive notice of information published in the CBD and now on FedBizOpps have been premised on the fact that first the CBD and now FedBizOpps have been expressly designated by statute and regulation as the official public medium for providing notice of contracting actions by federal agencies. See Herndon & Thompson, B-240748, Oct. 24, 1990, 90-2 CPD para. 327 at 3 (protesters are charged with constructive notice of contents of procurement synopsis published in the CBD since it is the official public medium for identifying proposed contract actions); see also 15 U.S.C. sect. 637(e)(2)(A) (2000); 41 U.S.C. sect. 416(a)(7) (2000); FAR sect. 2.101 (designating FedBizOpps as the governmentwide point of entry (GPE), “the single point where Government business opportunities greater than $25,000, including synopses of proposed contract actions, solicitations, and associated information, can be accessed electronically by the public”). In this case, the Air Force did not publish its intent to enter into a sole-source contract with OSS, nor did it provide notice of the award on FedBizOpps; rather, the Air Force announced the December award solely on DefenseLink. While the agency maintains that DefenseLink is “as widely known as FedBizOpps and as eagerly perused,” AR, Tab 2.a., Agency’s Request for Dismissal at 2, DefenseLink has not been designated by statute or regulation as an official public medium for providing notice of contracting actions. As a consequence, and in view of the sometimes harsh consequences of application of the doctrine, we do not treat posting on DefenseLink as giving rise to constructive notice. (WorldWide Language Resources, Inc.; SOS International Ltd., B-296984; B-296984.2; B-296984.3; B-296984.4; B-296993; B-296993.2; November 14, 2005) (pdf)


The agency initially asserts that Sigmatech’s protest is untimely filed. In this regard, the agency first contends that Sigmatech knew, or should have known, its basis for protest as early as either the February 18, 2003 "sources sought" notice or Sigmatech’s February 24 response to that notice. These documents, the agency argues, show that Sigmatech knew, or should have known, that the RSJPO services were going to be procured by TACOM under a different contract vehicle, and thus Sigmatech should have protested at that time. However, the "sources sought" notice is not a solicitation, and since our Office only hears protests of solicitations, Pancor Corp., B-234168, Mar. 29, 1989, 89-1 CPD para. 328 at 2, Sigmatech’s protest would have been premature at that point. Lockheed Martin Sys. Integration--Owego, B-287190.2, B-287190.3, May 25, 2001, 2001 CPD para. 110 at 16 n.10. The agency next asserts that the protest is untimely because it was not filed within 10 days of the agency’s September 23, 2003 letter that informed Sigmatech that the contract would be competed only among FSS 871 holders. However, Sigmatech denies receiving this letter, and in any event the RFQ still had not been issued (it was not issued until December 5), so a protest again would have been premature. Id. The agency also asserts that the firm did not diligently pursue its protest after submitting its response to the "sources sought" notice. Had it done so, the Army argues, Sigmatech would have discovered that the services would be procured only through TACOM under a BPA issued to an FSS 871 contractor, and that Sigmatech would be ineligible to compete because it did not hold an FSS 871 contract. However, nothing in the record (other than the September 23 letter that Sigmatech denies receiving) indicates that Sigmatech should have known that the TACOM BPA would be the vehicle used to procure the RSJPO services. Indeed, as noted above, the agency did not "release" a copy of the RFQ to Sigmatech, from which the firm may have been able to determine a basis for protest, or specifically notify Sigmatech that the SETA work it was performing for RFJPO was to be "bundled" into the BPA. In fact, even after award of the Sverdrup BPA in 2003, AMCOM placed orders for these services with Sigmatech extending into 2005, and recompeted the requirement. Thus, on this record, we cannot conclude that Sigmatech’s failure to earlier become apprised of the Army’s asserted plan to obtain these services through the Sverdrup BPA was the result of a lack of diligent pursuit of this information by the protester. In this regard, we resolve doubts over issues of timeliness in favor of protesters. See LBM, Inc., B-290682, Sept. 18, 2002, 2002 CPD para. 157 at 7. The record before us indicates that it was not until February 2005 that Sigmatech was informed by telephone of the Army’s plan to procure the SETA services solely through the Sverdrup BPA, and subsequent written communications from the agency during February, March, and April suggested that this plan was not final even then. In fact, the AMSCOM ombudsman stated as recently as April 21, 2005 that TACOM was "considering my recommendations" to compete the requirement and include small businesses in this competition. As he informed Sigmatech, based on his discussions with TACOM, "I believe there is a very high probability that they will issue a competitive RFP for the [SETA] services--and I see no reason that Sigmatech will be precluded from competing." Protest, attach. 9, E-mail from AMSCOM Ombudsman to Sigmatech (Apr. 21, 2005). The agency does not deny that TACOM was still considering whether to compete the requirement during this time. Given that we resolve doubts of timeliness in favor of the protester, we cannot on this record find Sigmatech’s protest to be untimely. The record shows that on April 29, Sigmatech was informed in writing that the SETA services it was currently performing were going to be performed under the TACOM BPA effective May 1. Sigmatech protested to our Office within 10 days of this letter, and we find that its protest was timely filed. 4 C.F.R. sect. 21.2(a)(1) (2005). (Sigmatech, Inc., B-296401, August 10, 2005) (pdf)


TAL also contends that the award to SVO is improper because the solicitation, a small business set-aside, failed to include a mandatory provision regarding limitations on subcontracting. Specifically, the RFP omitted the provision at Federal Acquisition Regulation sect. 52.219-14, applicable to small business set-aside procurements, that provides that in a contract for services (except construction), by submission of its offer and execution of a contract, the contractor agrees that at least 50 percent of the cost of contract performance incurred for personnel will be expended for the contractor’s own personnel.

An unsuccessful offeror cannot wait until learning of an adverse award determination to file a protest of apparent solicitation improprieties; rather, under our Bid Protest Regulations, to be timely, a challenge to an apparent solicitation defect must be filed prior to the closing time for the receipt of proposals. 4 C.F.R. sect. 21.2(a)(1) (2005). Accordingly, to the extent TAL challenges, post-award, the omission of the subcontracting limitation from the solicitation, the protest is untimely. Lockheed Eng’g and Mgmt. Servs., Inc.--Recon., B-212858.2, Feb. 14, 1984, 84-1 CPD para. 193 at 1-2. (TransAtlantic Lines, LLC, B-296245; B-296245.2, July 14, 2005) (pdf)


As an initial matter, the Navy argues that IMP's protest should be dismissed as untimely because IMP, by its own admission, received the Navy's decision denying its agency-level protest on Saturday, March 12, yet did not file its protest with our Office until March 24, more than 10 days after receipt of the agency-level protest decision. The protester responds that it is not open for business on weekends, and that although a vice-president for IMP received the envelope containing the protest decision on March 12 and then called another principle of the company to inform him that a letter had arrived from the Navy, the envelope was not opened until Monday, March 14. We do not agree with the Navy that the circumstances of this case warrant application of a rule different from the one articulated in Supreme Edgelight. The time period for filing a protest with our Office commences with a protester's actual or constructive knowledge of initial adverse agency action. As in Supreme Edgelight, there plainly was no actual knowledge in this case. Moreover, as we found in Supreme Edgelight, the receipt of an agency-level protest decision on a nonbusiness day, where the notice is not actually read, does not constitute constructive knowledge. While the Navy correctly points out that protesters have a duty to diligently pursue their bases for protest, we have never held, as the Navy would have us do here, that such a duty extends to conducting business outside of ordinary business hours (for example, a weekend). In addition, contrary to the Navy's argument, the position of the individual who receives the envelope containing the decision but leaves it unopened (whether a clerk, a principle of the company, or anyone else) has no bearing on whether a protester has received constructive notice of initial adverse agency action. Thus, we find that receipt of the agency's unopened envelope containing the decision on Saturday did not constitute constructive knowledge of initial adverse agency action, given that Saturday was not an ordinary business day for the protester. Rather, we conclude that IMP first learned of the agency's protest decision on Monday, March 14, the next businessday. Accordingly, IMP's protest, which was filed within 10 calendar days of that date, is timely. (International Marine Products, Inc., B-296127, June 13, 2005) (pdf)


VSE's initial protest of the cancellation of the RFP, filed December 30, 2004, specifically argued that the "Government's real agenda [in canceling the RFP] is the status quo, perpetuating improper sole source extensions forever or until some indefinite future time." VSE's Initial Protest at 18-19. We find that this constitutes a timely protest of the proposed sole-source extension of EG&G's contract. Although the agency argues that VSE did not then contend that the sole-source extension of EG&G's contract was the result of a lack of advanced planning but only untimely raised this contention in its comments on the agency report, this contention was based upon documents provided in the agency report on VSE's initial protest and is thus timely raised in VSE's comments. We consider VSE's protest of the sole-source bridge contract to be timely filed. On the other hand, Johnson Controls' protest, which was filed on March 11, 2005, more than 10 days after the announcement in FedBizOpps, is untimely and is dismissed. Johnson Controls argues that it would have been premature for it to protest the proposed sole-source action based upon the FedBizOpps announcement because no solicitation for the sole-source procurement had been issued and no sole-source justification had been prepared. However, nothing had really changed when Johnson Controls filed its "piggy-back" protest on March 11, 2005, in that the agency still had not issued a solicitation or prepared a sole-source justification. We dismiss Johnson Controls' protest as untimely. (VSE Corporation; Johnson Controls World Services, Inc., B-290452.3; B-290452.4; B-290452.5, May 23, 2005) (pdf)


Further, we do not agree that the debriefing was essentially ongoing pending the agency's answering the protester's October 7 questions. Although the record indicates that NGA did not answer all of New SI's questions at the debriefing session, and New SI maintains that there was "no statement by any NGA representative that the debriefing process was concluded at the end of the October 6, 2004 meeting," Declaration of New SI Chief Executive Officer, Nov. 5, 2004, at 2, neither was there any affirmative indication by the agency that the debriefing would be considered concluded only after the agency responded to further questions the protester might have after the October 6 session. In fact, the source selection authority (SSA) states that the contracting officer informed New SI at the beginning of the debriefing that "if it had any remaining questions after the debriefing was finished . . . New SI could submit written questions to the Contracting Officer after the debriefing ." Declaration of SSA, Nov. 5, 2004, at 1-2 (underlining added). It is clear from this statement that the agency considered the debriefing "finished" at the conclusion of the October 6 session, notwithstanding that it was willing to answer further questions the protester might have. Given the absence of any affirmative indication from the agency that the debriefing would remain open after the scheduled session, we consider it to have concluded at the end of that session. The fact that New SI may not have been satisfied with all aspects of the debriefing, and that it continued to pursue certain questions with the agency, did not extend the time for filing a bid protest based on the information provided during the debriefing. See Handheld Sys., Inc. , B-288036, Aug. 10, 2001, 2001 CPD 142 at 2 (protester's continued questions to the agency following a debriefing did not extend the time for filing a bid protest). Since New SI's protest was filed more than 10 days after it learned of the basis for the protest on October 6, the protest is untimely. (New SI, LLC, B-295209; B-295209.2; B-295209.3, November 22, 2004) (pdf)


Our Bid Protest Regulations provide that where, as here, a protester timely files an agency-level protest, any subsequent protest to our Office must be filed within 10 days of actual or constructive knowledge of initial adverse agency action. 4 C.F.R 21.2(a)(3) (2004). In an analogous case, we found that a protester's receipt on Saturday (a non-business day) by electronic mail of the agency's notification that the firm had been excluded from the competitive range should be considered as received by the protester on the next business day for the purposes of determining whether a request for a required debriefing was timely. See International Res. Group , B-286663, Jan. 31, 2001, 2001 CPD 35 at 5. The agency argues that our decision in International Res. Group is inapplicable here because that decision did not concern the computation of time required to file a protest with our Office but only concerned when a protester was deemed to have received notice of its competitive range exclusion for the purposes of requesting a required debriefing. We do not agree that this difference distinguishes the rule stated in International Res. Group . In either situation, the time period for requesting a required debriefing or filing a protest with our Office commences with a protester's actual or constructive knowledge of initial adverse agency action. As we found in International Res. Group , the mechanical receipt of notice on a non-business day, where the notice is not actually read, does not constitute actual or constructive knowledge. With respect to receipt outside the protester's ordinary business hours (for example, a weekend), we find no practical difference between by e-mail or by the protester's clerical or security personnel for purposes of determining whether a protester has received constructive or actual notice of initial adverse agency action.  (Supreme Edgelight Devices, Inc., B-295574, March 4, 2005) (pdf)


The protests challenge an evaluation and source selection process that took place between June 2000 and June 2001. As a procedural matter, our Office's timeliness rules generally preclude consideration of protests challenging agency actions, such as these, that took place in the relatively distant past. See Bid Protest Regulations, 4C.F.R. 21.2 (2004). Here, however, the protests are based on information first obtained by the protesters in October 2004 due to the public disclosure at that time of documents relating to Darleen Druyun's criminal conviction and sentencing for violation of the conflict of interest provisions codified at 18 U.S.C. 208(a) (2000). Since the protesters had no reason to know of the information disclosed in those documents, we view the protests as timely. (Lockheed Martin Aeronautics Company; L-3 Communications Integrated Systems L.P.; BAE Systems Integrated Defense Solutions, Inc., B-295401, B-293401.2, B-295401.3, B-295401.4, B-295401.5, B-295401.6, B-295401.7, B-295401.8, February 24, 2005) (pdf)


To the extent Pitney Bowes disagrees with the agencys interpretation of the term business rules, we view the solicitation as patently ambiguous. As noted above, an offeror has an affirmative obligation to seek clarification prior to the first due date for submissions responding to the solicitation following introduction of the ambiguity into the solicitation. 4 C.F.R. 21.2(a)(1). Where a patent ambiguity is not challenged prior to such submissions, we will dismiss as untimely any subsequent protest assertion that is based on an alternative interpretation. Kellogg Brown & Root, Inc. , supra ; Bank of Am. , B287608, B-287608.2, July 26, 2001, 2001 CPD 137 at 10. Our rule that protests of patent ambiguities must be filed prior to responsive submissions is intended to facilitate clarification of legitimate questions prior to preparation of submissions. Since Pitney Bowes sought no clarification of this matter prior to responding to the solicitation, it may not now assert that the only permissible interpretation of this term is its own. (Pitney Bowes Inc., B-294868; B-294868.2, January 4, 2005) (pdf)


Pitney Bowes first protests that the agency lacked a proper basis to cancel the initial delivery order. Pitney Bowes does not dispute that its submission failed to reflect any prices for meter head bases or scales in the option years. Nonetheless, Pitney Bowes maintains that the RFQ only sought vendors quotations to purchase meter head bases and scales during the base year, and that no such purchases were contemplated during the option years. The record is to the contrary. As noted above, the solicitation expressly advised the vendors that they were to complete the following pricing, that [t]he number of units to be provided in the option years has not been determined, and that the vendors quotations for the option-year quantities would be used for the purpose of evaluating bids. RFQ at 1. Accordingly, it is clear that quotations for all line items, including option-period line items was required. To the extent Pitney Bowes viewed this clear solicitation requirement as either unrealistic or otherwise contrary to other aspects of the RFQ, any protest on that basis had to be filed prior to the time set for submission of quotations, in order to be timely under our Bid Protest Regulations. 4 C.F.R. 21.2(a)(1). On this record, we find nothing improper in the agency's cancellation of the initial delivery order issued to Pitney Bowes. (Pitney Bowes Inc., B-294868; B-294868.2, January 4, 2005) (pdf)


This case presents two related questions pertaining to timeliness. The first is whether a time/date stamp is determinative as to the timeliness of a protest filing where other evidence clearly establishes the time that the protest arrived at our Office. The answer to this question is no. While we rely upon our time/date stamp to determine the timeliness of protest filings with our Office where other evidence clearly establishing the time that the protest arrived is absent, Peacock, Myers & Adams , B-279327, Mar. 24, 1998, 98-1 CPD 94 at 2, we will not rely upon the stamp where other acceptable evidence of earlier receipt is available, as was the case here. Our fax machine printed the time and date of receipt on each page of the protest as it was received, and these captions establish that all 11 pages of the protest were received at 2:42 p.m. on July 5. In addition, there is evidence (in the form of an e-mail message confirming receipt of the protest that was automatically generated by our computer system at 3:22 p.m. on July 5) that Guam Shipyard sent an e-mail copy of its protest to our Office prior to the time set for receipt of quotations. We turn then to our second question, which is whether we should consider a protest transmitted to our Office by e-mail or fax outside of business hours as filed at the time it enters our computer system (in the case of e-mail) or is received by our fax machine (in the case of a fax) or whether we should consider it as filed as of the opening of business on the following business day. We think that the answer is the latter. While we recognize that our Regulations define the term "days" as "calendar days," 4 CFR 21.0(e), the clear intent behind the Regulations, read as a whole, is that documents may be, and are considered, filed only on days when our Office is open for business. In this regard, 4 CFR 21.0(g) states that "[a] document is filed on a particular day when it is received by GAO by 5:30 p.m., eastern time, on that day," and documents filed after 5:30 p.m. are considered filed on the next business day. See , e.g. , Computer One, Inc.Recon. , B-249352.7, Sept. 27, 1993, 93-2 CPD 185 at 2 n.1. The reference to the 5:30 p.m. deadline has meaning only if used in the context of business days. See Bid Protests at GAO: A Descriptive Guide , 15 (7th ed. 2003) (GAO's office hours are from 8:30 to 5:30 p.m., eastern time, Monday through Friday). In an analogous situation, we have held that where e-mail notification of an offeror's exclusion from the competitive range enters an offeror's computer system after close of business on a weekday or on a weekend or holiday and is not opened before the following business day, receipt of the notice should not be considered to have occurred until that business day. Int'l Resources Group, B-286663, Jan. 31, 2001, 2001 CPD 35 at 5. Similarly here, we do not consider protest-related submissions received via e-mail or fax outside of business hours as effectively receivedand thus filed--until the following business day. (Guam Shipyard, B-294287, September 16, 2004) (pdf)


As a general rule, a protester is not required to protest that another firm has an impermissible OCI until that firm has been selected for award. REEP, Inc. , B-290688, Sept. 20, 2002, 2002 CPD 158 at 1-2. A different rule applies, however, where a solicitation is issued on an unrestricted basis, the protester is aware that a potential offeror has participated in developing the project and is participating in the competition, and the protester has been advised by the agency that it considers the potential offeror eligible for award. International Sci. and Tech. Inst., Inc. , B-259648, Jan. 12, 1995, 95-1 CPD 16 at 3-4; see CDR Enters., Inc. , B-293557, Mar.26, 2004, 2004 CPD 46 at 3 n.1. In such cases, the protester cannot wait until an award has been made to file its protest, but instead must protest before the closing date for receipt of proposals. International Sci. and Tech. Inst., Inc. , supra . Here, the assessment prepared by TCGI--which clearly showed the extent of the firm's prior involvement in the program--was included in the solicitation. Further, it is clear that Abt knew both that TCGI was participating in the procurement and that the agency did not consider TCGI to have an OCI that precluded it from receiving the award. Under these circumstances, Abt's protest is untimely because it was not filed prior to the closing date for receipt of proposals. International Sci. and Tech. Inst., Inc. , supra . (Abt Associates, Inc., B-294130, August 11, 2004) (pdf)


In requesting reconsideration, AMI claims that the late-December conversation conveyed to AMI only that PTBS had filed a complaint alleging that it should have received award after application of the 10-percent preference, and that the agency was imposing a stop-work order until a decision could be made, which would be made known to AMI at that time. According to AMI, it became aware that the agency had made a final determination to terminate the Good Housekeeping portion of AMI's contract only when it received the amendment/modification to that effect on January 7, and that the timeliness period therefore should commence on that date, making the January 13 agency protest timely. Our original decision found that the stop-work order plus the contracting officer's explanation that application of the 10-percent preference could result in the contract going to PTBS gave AMI sufficient information to file a protest. On reflection, however, and in light of our rule that doubt as to when a protester became aware of its basis for protest should be resolved in favor of the protester, Metro Monitoring Servs., Inc. , B-274236, Nov. 27, 1996, 96-2 CPD 204 at 4, we have decided that AMI should be given the benefit of the doubt about the content of the conversation with the contracting officer. While the information given to AMI in late December clearly conveyed that the Good Housekeeping portion of its contract was in jeopardy, we are willing to assume, for purposes of determining timeliness of the subsequent protest, that the agency left AMI with reason to believe that a final determination had yet to be made. When a firm has been notified that the agency is considering taking an action adverse to the firm's interests, but has not made a final determination, the firm need not file a defensive protest, since it may presume that the agency will act properly. See Haworth, Inc.; Knoll North America, Inc. , B-256702.2, B-256702.3, Sept. 9, 1994, 94-2 CPD 98 at 4-5; Tamper Corp. , B-235376.2, July 25, 1989, 89-2 CPD 79 at 2; Dock Express Contractors, Inc. , B-227865.3, Jan. 13, 1988, 88-1 CPD 23 at 6. (American Multi Media, Inc.--Reconsideration, B-293782.2, August 25, 2004) (pdf)


As an initial matter, the protester’s allegation that the agency improperly failed to make a cost/technical tradeoff, including crediting Dix with superior experience, is an untimely protest of an ambiguity apparent on the face of the RFQ. Although RFQ, at section 3-7, included language consistent with making a “best value” selection, such as the relative weights of evaluation factors, suggesting that the agency would conduct a cost/technical tradeoff if necessary, that section of the RFQ also stated that “[i]t is the Government’s intent to award to the offeror who receives a Satisfactory or better rating in sub-factors 1, 2, 3, and 4, and who has the lowest price.” RFQ § 3-7(a)(1). As the protester itself acknowledges, these provisions are in “inherent conflict.” Dix Comments, May 19, 2004, at 5. Where a solicitation contains such a patent ambiguity, an offeror has an affirmative obligation to seek clarification prior to the first due date for responding to the solicitation following introduction of the ambiguity into the solicitation. 4 C.F.R. § 21.2(a)(1) (2004); see American Connecting Source d/b/a/ Connections , B-276889, July 1, 1997, 97-2 CPD ¶ 1 at 3. The purpose of our timeliness rule in this regard is to afford the parties an opportunity to resolve ambiguities prior to the submission of solicitation responses, so that such provisions can be remedied before firms formulate their responses. Gordon R. A. Fishman , B-257634, Oct. 11, 1994, 94-2 CPD ¶ 133 at 3. Where a patent ambiguity is not challenged prior to submission of solicitation responses, we will dismiss as untimely any subsequent protest assertion that is based on one of the alternative interpretations as the only permissible interpretation. U.S. Facilities, Inc. , B-293029, B-293029.2, Jan. 16, 2004, 2004 CPD ¶ 17 at 10. (Dix Corporation, B-293964, July 13, 2004) (pdf)


On March 30, the contracting officer informed CDC via e-mail that VA had not selected CDC’s quotation. CDC immediately sent an e-mail to the contracting officer advising that it would protest VA’s decision upon receipt of formal notification and explanatory documents. In a letter dated April 5, postmarked April 8, and received by CDC April 11, VA again notified CDC of its decision to select Braun and briefly explained the reasons for its decision. CDC filed its protest with our Office on April 12. VA argues that CDC’s protest is untimely because it was not filed within 10 days of the contracting officer’s preliminary e-mail notice that CDC’s quotation had not been selected. See Bid Protest Regulations, 4 C.F.R. § 21.2(a)(2) (2004). We disagree. The agency’s April 5 e-mail advising that Braun’s quotation had been selected did not contain sufficient information to put CDC on notice of its basis for protest. Immediately after receiving that e-mail, CDC acted reasonably and promptly by first requesting further information from the agency, and then filing its protest on April 12, the same day it received the agency’s letter explaining in some further detail the basis for the selection decision. See Alliance Properties, Inc., B-203539, Oct. 28, 1981, 81-2 CPD ¶ 357 at 2. (Chicago Dryer Company, B-293940, June 30, 2004) (pdf)


While we acknowledge the significance of the matters Saltwater raises, these issues are not timely at this juncture. Our Bid Protest Regulations require that improprieties in a solicitation--including those which did not exist in the initial solicitation, but were subsequently incorporated--must be raised prior to the next closing time for receipt of proposals. 4 C.F.R. § 21.2(a)(1); East Penn Mfg. Co., Inc., B-261046, Aug. 1, 1995, 95-2 CPD ¶ 50 at 3. Put simply, Saltwater’s contention that it became aware of these potential ambiguities upon receipt of the modification on December 2, rather than upon receipt of the agency’s November 18 second request for FPRs, is not persuasive. As set forth above, a comparison of the November 18 request for a revised proposal with the terms of the modification provided to implement the new selection decision shows nothing in the modification that was not previously disclosed to the company in the November 18 request. Specifically, the November 18 request: (1) expressly advises that fisheries observers will be viewed as non-exempt employees eligible for overtime; (2) advises that overtime must be paid at a rate not less than 1½ times the basic rate of pay for hours worked in excess of 40 per week; and (3) advises that NMFS views these requirements as applicable whether an observer is within or without U.S. territorial waters. AR, Tab 16, at 1. Each of these issues is reflected, in very similar terms, in the December 2 modification. Indeed, Saltwater’s response to the request for a second FPR indicates to us that the company fully understood the implications of the NMFS policy statement--and had concerns about it. In this regard, it advised the agency that while it had revised its proposal, it did not want its actions to be construed as agreement that the NMFS policies were required by law. In our view, the clear language of the November 18 notice, Saltwater’s caveat about it, and the lack of any meaningful difference between the notice and the December 2 modification, mean that Saltwater was required to raise any challenge to these overtime policies prior to submitting its second FPR. Its attempt to do so now--as the underlying basis for challenging the termination of its contract for its refusal to execute the modification--is untimely. (Saltwater Inc., B-293335.3, April 26, 2004) (pdf)


Reedsport also questions the CO’s justification for removing Station Tillamook from Lot 4, on the basis that the agency report shows that the justification was based in part on the CO’s miscalculation of transit times from Modutech’s and Reedsport’s facilities. This allegation also is untimely. Even if the protester was unaware of the underlying justification for the amendment until it received the agency report, a challenge to an amendment that could have been timely raised cannot subsequently be revived by an event--such as the protester’s receipt of documents indicating the agency’s reasoning for the amendment--that only serves to confirm the untimely protest grounds. All Phase Envtl., Inc., B-292919.2 et al., Feb. 4, 2004, 2004 CPD ¶ __ at 9 n.4. In any case, prejudice is a necessary element of every viable protest, and since Reedsport was able to bid on both Lot 3 and Lot 4, it is not apparent how the firm was competitively harmed. Indeed, Reedsport won Lot 3, and the MLBs from Station Tillamook therefore will provide additional work for Reedsport under the contract. Parmatic Filter Corp., B-285288.3, B-285288.4, Mar. 30, 2001, 2001 CPD ¶ 71 at 11; see Statistica, Inc. v. Christopher, 102 F. 3d 1577, 1581 (Fed. Cir. 1996). (Reedsport Machine & Fabrication, B-293110.2; B-293556, April 13, 2004) (pdf)


Under our Bid Protest Regulations, protests must be filed in our Office no later than 10 days after the protest grounds were known or should have been known. 4 C.F.R. § 21.2(a)(2) (2003). Supplemental protests must independently satisfy our timeliness requirements. Saco Defense Corp., B-283885, Jan. 20, 2000, 2000 CPD ¶ 34 at 5-6, n.3. The record shows that ACT received its copy of the agency report--which contained the information on which ACT’s additional arguments are based--on November 10, 2003, and that its comments on the report were not filed in our Office until November 21. By letter dated November 11, the protester’s counsel advised us that, although he had actually been handed a copy of the report at 6:00 p.m. on November 10, this was after the firm’s regular business hours; protester’s counsel therefore asserted that the 10-day period for filing comments and for raising any new protest grounds based on the report did not begin to run until the next day, November 11, and that both ACT’s comments and any supplemental protest grounds were due by November 21. By telephone, on November 17, we granted ACT’s request to file its comments on November 21. Although ACT’s counsel asserts to the contrary, we did not further state that the timeliness period for raising new protest grounds was extended. Nor do we believe it would have been appropriate to grant such an extension, since ACT’s counsel concedes that he was in actual receipt of the agency report on November 10 (as opposed to November 11). This being the case, ACT was required to file any supplemental protest grounds within 10 days after November 10, that is, no later than November 20. Since the supplemental bases for protest were not filed until 11 days after ACT’s receipt of the agency report, they are untimely and will not be considered. (AC Technologies, Inc., B-293013; B-293013.2, January 14, 2004) (pdf)


Our Bid Protest Regulations contain strict rules for the timely submission of protests. Under these rules, a protest based on other than alleged improprieties in a solicitation must be filed not later than 10 calendar days after the protester knew, or should have known, of the basis for protest, whichever is earlier. 4 C.F.R. § 21.2(a)(2) (2003). Our timeliness rules reflect the dual requirements of giving parties a fair opportunity to present their cases and resolving protests expeditiously without unduly disrupting or delaying the procurement process. Dominion Aviation, Inc.--Recon., B-275419.4, Feb. 24, 1998, 98-1 CPD ¶ 62 at 3. Here, NVT acknowledged receipt on July 31 of the agency’s document addressing the regulatory requirements for a substantial bundling analysis. However, since NVT did not challenge the merits of the agency’s substantial bundling analysis until more than 10 days after it received the relevant document, we will not consider NVT’s protest in this regard. (NVT Technologies, Inc., B-292302.3, October 20, 2003) (pdf)


Gamut maintains that its protest was timely because it did not notice the improprieties prior to its proposal's rejection, which then prompted it to perform a “detailed analysis of the solicitation,” and because it was unaware that the agency considered the solicitation a BAA until after Gamut had filed its original protest. Response to Motion to Dismiss, June 6, 2003; Gamut Letter, June 11, 2003 at 1. This argument is without merit. The solicitation plainly laid out all aspects of the requirement that Gamut now protests: the phased nature of the procurement, the evaluation criteria, and the agency's significant discretion in selecting all, some, or none of the proposals for demonstration or awards. Thus, Gamut was, or should have been, fully aware of all the matters it now challenges, and could not delay protesting until it completed its “detailed analysis.” While Gamut may not have been aware that the solicitation was a BAA, the essence of its protest--that the agency's substantive approach to the procurement was flawed--was not dependent upon this information, and the fact that the protest incorporated this information therefore did not render it timely.  Gamut asserts that we should consider its untimely arguments under the significant issue exception to our timeliness requirements. 4 C.F.R. § 21.2(c). Under this exception, we may consider a protest notwithstanding its untimeliness when, in our judgment, doing so would be in the interest of the procurement system. ABB Lummus Crest Inc., B‑244440, Sept. 16, 1991, 91-2 CPD ¶ 252 at 4. The exception is limited to protests that raise issues of widespread interest to the procurement community, and that have not been considered on the merits in a previous decision. Id. We find no basis for applying the exception here since, while the protest is of interest to Gamut, there is no reason to believe that the issues raised would be of widespread interest to the procurement community. DSDJ, Inc., B‑288438 et al., Oct. 24, 2001, 2002 CPD ¶ 50 at 3. (Gamut Electronics, LLC, B-292347; B-292347.2, August 7, 2003)  (pdf)


As stated in the supplemental agency protest, the protester's allegation was based upon information first learned at the debriefing, namely that the Air Force had rated Platinum and Clay the same for past performance and thus found them to be “equally as qualified.”  Protester's Comments, Tab G, Supplemental Agency Protest, at 1-2. Because this protest ground was received by the Air Force within 10 days of the debriefing, it was timely filed with the agency, and Clay's subsequent protest was timely filed at our Office because it was received here within 10 days of when Clay received notice of the Air Force's dismissal of its agency protests.[3] The agency's argument that Clay's entire protest should be dismissed because it did not timely request a debriefing is meritless, given that non-required debriefings are permitted, see Federal Acquisition Regulation (FAR) § 15.506(a)(4)(i), and a protest based on information first revealed in a non-required debriefing, as here, is timely if filed within 10 days of the debriefing. Beneco Enters., Inc., B-283154, Oct. 13, 1999, 2000 CPD ¶ 69 at 6 n.6. (Robert Clay, Inc., B-292443, August 14, 2003)  (pdf)


Here, HMX's proposal explicitly takes exception to the solicitation's requirements for proposal information, such as cost and pricing data and technical data requirements. Agency Report, Tab L, HMX's Proposal, at H-1 through H-4. This portion of the proposal sets forth HMX's position that the NRA's proposal preparation instructions do not comply with the Commercial Space Act, and that the Act permitted HMX to deviate from the terms of the NRA to comply instead with the standards for proposals for commercial items as reflected in FAR Part 12, Acquisition of Commercial Items. However, the NRA did not reference the Act or FAR Part 12.  Therefore, even if we accept the protester's interpretations of the Act as both applying to this NRA by operation of law and requiring acquisition of the launch services proposed by HMX consistent with the regulations governing the acquisition of commercial items, there remains the unavoidable fact that the express terms of the NRA are inconsistent with HMX's interpretation of the Act. This obvious conflict can only be viewed as an alleged impropriety apparent on the face of the solicitation. Since HMX did not protest until after its proposal was rejected--i.e., well after the time set for receipt of proposals--the protest is untimely.  (HMX, Inc., B-291102, November 4, 2002)  (txt version)


We do not agree that Payne's protest is untimely. The protester is objecting to the agency's failure to consider its quotation; accordingly, we think that Payne's period for filing a protest did not begin to run until the contracting officer notified it that he had not considered the quotation. The notification that the protester received on October 15 did not start the 10-day period running because, while it informed the protester of the selection of Ridgley, it did not advise the protester that its quotation had not been considered; thus, it did not furnish the protester with the information providing the basis for its protest.  Further, we do not think that the conversation between the Payne representative and a contracting office employee on October 16 constituted notice sufficient to start the 10-day period running because while the employee initially informed the protester that its quotation had not been considered because the RFQ was not open to it, she then backtracked, stating that there appeared to be serious problems with the solicitation and that the protester would need to speak with the contracting officer.  Under the circumstances of this case, we do not think that the protester can be said to have learned of its basis for protest until October 21 at the earliest, when a representative of the company spoke with the contracting officer and was told that its quotation had not been considered. Accordingly, we consider its protest filed on October 30 to be timely.  (Payne Construction, B-291629, February 4, 2003)  (txt version)


AST's argument is untimely. The essence of AST's contention is that a site visit was critical to its competitors' submitting proposals with prices that reflect what AST views as the actual amount of liquid required to be disposed under the contract. This is essentially a challenge to the terms of the solicitation, which did not make attendance at the site visit mandatory. Alternatively, AST's presumably believes that the RFP should have identified the amount of liquid the contractor would be required to dispose of, or, at the least, it should have required offerors to disclose the amount of liquid whose removal their proposed prices reflect (which AST itself appears not to have disclosed in its proposal). Protests challenging alleged defects in a solicitation must be filed prior to the time set for receipt of proposals. 4 C.F.R. ¶ 21.2(a)(1) (2002). As the incumbent, AST was uniquely knowledgeable of any such defect here and thus in a position to protest without waiting to learn that it had lost the competition. See Allstate Van & Storage, Inc., B-247463, May 22, 1992, 92-1 CPD ¶ 465 at 5-6. Because it did not protest the alleged solicitation defects prior to the closing date, its protest is untimely.  (AST Environmental, Inc., B-291567, December 31, 2002.)


We have recognized that the increasing use of ID/IQ contracts with very broad and often vague statements of work may place an unreasonable burden upon potential offerors, who may be required to guess as to whether particular work, for which they are interested in competing, will be acquired under a particular ID/IQ contract. See Valenzuela Eng'g, Inc., B-277979, Dec. 9, 1997, 98-1 CPD P: 51 (Letter to the Acting Sec'y of the Army, Jan. 26, 1998, at 2). This burden may be particularly problematic for small businesses. Id. In our view, it is unreasonable to require a small business that believes that one specific acquisition should continue to be set aside for small businesses to identify the possibility, at the time proposals for ID/IQ contracts to perform a broad and undefined scope of work are solicited, that the specific, and relatively small, acquisition it is interested in may ultimately be transferred to the ID/IQ contracts. The breadth and vagueness of the LOGJAMSS scope of work illustrate this, since it encompassed a *wide range of logistical functions and supporting tasks* and was undefinitized at the time the LOGJAMSS contracts were solicited. Accordingly, we conclude that LBM could not reasonably be aware, and required to protest, at the time the LOGJAMSS contracts were being competed (and apparently years before the Army considered using those contracts for the Fort Polk motor pool services), that the broad and nonspecific scope of work in the LOGJAMSS solicitation could be improperly used as a vehicle for the agency to perform the motor pool services at Fort Polk without first taking the steps legally required regarding a possible further acquisition of that work under a small business set-aside.  (LBM, Inc., B-290682, September 18, 2002)  (pdf)


In a supplemental protest filed by HG more than 3 months after the underlying lease was awarded to POC, raising issues which allegedly were based upon HG’s review of a copy of that lease included in the agency’s report on HG’s initial protest, HG raised numerous challenges to, among other things, the evaluation and acceptance of the POC offer. Given the substantial passage of time since that lease was awarded, however, we conclude that the challenges are untimely. A protester is required to diligently pursue information forming the basis for a protest. Here, HG waited months before it requested and reviewed information about that award for possible bases of protest. This delay simply does not meet our requirements for the expeditious pursuit of information.1 See Professional Rehab. Consultants, Inc., B-275871, Feb. 28, 1997, 97-1 CPD ¶ 94 at 2-3.  (HG Properties A, LP, B-290416; B-2904162, July 25, 2002  (pdf))


Protests that merely anticipate improper agency action are premature. See Saturn Indus.--Recon., B-261954.4, July 19, 1996, 96-2 CPD para. 25 at 5. Here, the Navy has, as the protester acknowledges, not yet decided what action or actions the agency will take in response to the appeal authority's decision, so that there is no agency action for our Office to review. We share the protester's concern about the process being drawn out unnecessarily, and in this regard it is helpful that the Navy appears committed to moving forward expeditiously. We recognize, however, that the issues identified by the appeal authority are significant, and we believe that the agency should have a reasonable opportunity to review the appeal authority's decision to determine its course of action. Once the Navy decides what action to take in response to the appeal authority decision, that decision may form the basis for a valid bid protest, which IT or another interested party may file with our Office at that time.  (A-76 Issue) (IT Corporation, B-288507, September 7, 2001)


Protest presenting argument raised in appeal under Office of Management and Budget Circular No. A-76 is untimely where filed with the General Accounting Office more than 10 days after contracting agency denied protester's appeal. While the protest was filed within 10 days of cancellation of the underlying solicitation, cancellation was merely implementation of the denial of the appeal.  (Crown Support Services, Inc., B-287070, January 31, 2001)  (pdf)


Protest based on information obtained during post-award debriefing is not timely filed where protester who was excluded from competitive range requested that the debriefing be delayed until after award.  (United International Investigative Services, Inc., B-286327, October 25, 2000)  (pdf)


Protester's contention that a solicitation improperly requires submission of proprietary technical data for evaluation of a commercial item in violation of the regulations governing commercial item acquisitions is rendered academic when the agency waives the application of the regulation, and the protester fails to raise a timely objection to the waiver.  (ATA Defense Industries, Inc., B-282511.8, May 18, 2000.)  (pdf)


Protest of an alleged solicitation impropriety--that the agency improperly considered crew berthing costs in the evaluation of price proposals--is dismissed as untimely where the protester waited until after award to raise this issue.  (Burns and Roe Services Corporation, B-282437.3, November 30, 1999)  (pdf)


Oahu also argues that the Air Force should have amended the solicitation to incorporate the answers to various questions asked by Oahu. This allegation concerns an alleged solicitation impropriety, see Texnokpatikh, B-245835.2, Feb. 6, 1992, 92-1 CPD para. 153 at 2, and was not timely raised at our Office. The record reflects that Oahu filed a timely agency-level protest of this issue before initial proposals were due on February 2. See 4 C.F.R. sec. 21.2(a)(1). The agency denied this protest on February 26. To be timely, this issue should have been protested to our Office within 10 days of the agency's denial, or by March 8, but Oahu waited until March 10. See 4 C.F.R. sec. 21.2(a)(3). Although Oahu notes that it protested within 10 days of a requested and required debriefing, the debriefing exception to our timeliness rules does not apply to protests based upon alleged solicitation improprieties, such as this one.[2] See 4 C.F.R. sec. 21.2(a)(2).  (Oahu Tree Experts, B-282247, March 31, 1999)

Comptroller General - Listing of Decisions

For the Government For the Protester
New PennaGroup, LLC B-414840.2, B-414841.2: Aug 25, 2017 Eastern Forestry B-411848: Nov 9, 2015  (pdf)
IR Technologies B-414430, B-414430.2, B-414430.3: Jun 6, 2017 Motorola Solutions, Inc, B-409148, B-409148.2, Jan 28, 2014  (pdf)
Medfinity LLC B-413450: Sep 9, 2016 Harris IT Services Corporation, B-406067, Jan 27, 2012  (pdf)
Choctaw Staffing Solutions, Inc. B-412152.3: Aug 24, 2016 The Boeing Company, B-311344; B-311344.3; B-311344.4; B-311344.6; B-311344.7; B-311344.8; B-311344.10; B-311344.11, June 18, 2008 (pdf)
Suntek Systems, Inc. B-412265: Dec 22, 2015  (pdf) Singleton Enterprises, B-298576, October 30, 2006 (pdf)
Adams and Associates, Inc., B-409680,B-409681: Apr 22, 2014  (pdf) WorldWide Language Resources, Inc.; SOS International Ltd., B-296984; B-296984.2; B-296984.3; B-296984.4; B-296993; B-296993.2; November 14, 2005 (pdf)
Lulus Ostrich Ranch, B-408993.2: Feb 21, 2014  (pdf) VSE Corporation; Johnson Controls World Services, Inc., B-290452.3; B-290452.4; B-290452.5, May 23, 2005 (pdf)
Logis-Tech, Inc., B-407687, Jan 24, 2013  (pdf) Supreme Edgelight Devices, Inc., B-295574, March 4, 2005 (pdf)
McKissack-URS Partners, JV, B-406489.2, B-406489.3, B-406489.4, May 22, 2012  (pdf) Lockheed Martin Aeronautics Company; L-3 Communications Integrated Systems L.P.; BAE Systems Integrated Defense Solutions, Inc., B-295401, B-293401.2, B-295401.3, B-295401.4, B-295401.5, B-295401.6, B-295401.7, B-295401.8, February 24, 2005 (pdf)
Hawker Beechcraft Defense Company, LLC, B-406170, December 22, 2011  (pdf) American Multi Media, Inc.--Reconsideration, B-293782.2, August 25, 2004 (pdf)
The McConnell Group, Inc., B-405377, October 21, 2011  (pdf) Chicago Dryer Company, B-293940, June 30, 2004 (pdf)
Waterfront Technologies, Inc., B-403638.3, February 22, 2011  (pdf) Payne Construction, B-291629, February 4, 2003)  (txt version)
Baldt Inc., B-402596.3, June 10, 2010 (pdf) LBM, Inc., B-290682, September 18, 2002)  (pdf)
CES Industries, Inc., B-401427, September 1, 2009  (pdf) Marshall-Putnam Soil and Water Conservation District, B-289949; B-289949.2, May 29, 2002 
Ball Aerospace & Technologies Corporation, B-402148, January 25, 2010 (pdf)  
Sea Box, Inc., B-401523; B-401523.2, September 25, 2009  (pdf)  
Golight Inc., B-401866, September 10, 2009 (pdf)  
University of Massachusetts Donahue Institute, B-400870.3, July 15, 2009  (pdf)  
Optical Energy Technologies, Inc., B-401520, July 13, 2009  (pdf)  
Caddell Construction Company, Inc., B-401281, June 23, 2009 (pdf)  
RTI Technologies, LLC, B-401075, April 15, 2009  (pdf)  
M2 Global Technology, Ltd., B-400946, January 8, 2009 (pdf)  
Datamaxx Group, Inc., B-400582, December 18, 2008 (pdf)  
Smart Innovative Solutions, B-400323.3, November 19, 2008 (pdf)  
Hart Security Limited, B-400796.2, December 16, 2008 (pdf)  
Gentex Corporation, B-400328; B-400328.2, September 23, 2008  (pdf)
 
 
Armorworks Enterprises, LLC, B-400394; B-400394.2, September 23, 2008 (pdf)  
FitNet Purchasing Alliance, B-400553, September 24, 2008  (pdf)  
Domain Name Alliance Registry, B-310803.2, August 18, 2008  (pdf)  
Goel Services, Inc., B-310822.2, May 23, 2008 (pdf)  
Masai Technologies Corporation, B-400106, May 27, 2008 (pdf)  
Rhonda Podojil--Agency Tender Official, B-311310, May 9, 2008 (pdf)  
Apptis, Inc., B-299457; B-299457.2; B-299457.3, May 23, 2007) (pdf)  
CAMSS Shelters, B-309784; B-309784.2, October 19, 2007 (pdf)  
K9 Operations, Inc.,  B-299923, August 6, 2007 (pdf)  
Remington Arms Company, Inc., B-297374; B-297374.2, January 12, 2006 (pdf)  
The MIL Corporation, B-297508; B-297508.2, January 26, 2006 (pdf)  
Lifecare Management Partners, B-297078; B-297078.2, November 21, 2005 (pdf)  
L-3 Systems Company Wescam Sonoma, Inc., B-297323, December 3, 2005 (pdf)  
Sigmatech, Inc., B-296401, August 10, 2005 (pdf)  
TransAtlantic Lines, LLC, B-296245; B-296245.2, July 14, 2005 (pdf)  
International Marine Products, Inc., B-296127, June 13, 2005 (pdf)  
New SI, LLC, B-295209; B-295209.2; B-295209.3, November 22, 2004 (pdf)  
Pitney Bowes Inc., B-294868; B-294868.2, January 4, 2005 (pdf)  
Guam Shipyard, B-294287, September 16, 2004 (pdf)  
Abt Associates, Inc., B-294130, August 11, 2004 (pdf)  
Dix Corporation, B-293964, July 13, 2004 (pdf)  
Saltwater Inc., B-293335.3, April 26, 2004 (pdf)  
Reedsport Machine & Fabrication, B-293110.2; B-293556, April 13, 2004 (pdf)  
AC Technologies, Inc., B-293013; B-293013.2, January 14, 2004 (pdf)  
NVT Technologies, Inc., B-292302.3, October 20, 2003 (pdf)  
Robert Clay, Inc., B-292443, August 14, 2003)  (pdf)  
Gamut Electronics, LLC, B-292347; B-292347.2, August 7, 2003  (pdf)  
HMX, Inc., B-291102, November 4, 2002)  (txt version)  
AST Environmental, Inc., B-291567, December 31, 2002.  
HG Properties A, LP, B-290416; B-2904162, July 25, 2002  (pdf)  
WPI, B-288988.4; B-288998.5, March 22, 2002  (pdf)  
IT Corporation, B-288507, September 7, 2001  (PDF Version)  (A-76 Issue)  
Crown Support Services, Inc., B-287070, January 31, 2001   (pdf)  
United International Investigative Services, Inc., B-286327, October 25, 2000  (pdf)  
ATA Defense Industries, Inc., B-282511.8, May 18, 2000.  (pdf)  
Burns and Roe Services Corporation, B-282437.3, November 30, 1999  (pdf)  
Oahu Tree Experts, B-282247, March 31, 1999  (PDF Version)  
Professional Rehab. Consultants, Inc., B-275871, Feb. 28, 1997

U. S. Court of Federal Claims - Key Excerpts

New C. Yorktel’s Has Waived Its Challenge To The RFP’s Size Standard

While Yorktel has established jurisdiction and that it has standing to pursue its bid protest claim, the administrative record in this matter, nonetheless, demonstrates that the Court must dismiss this matter because Yorktel’s claim is untimely. This Court has long recognized that an offeror wishing to challenge the terms of a solicitation must do so before offers are due. Blue & Gold Fleet, 492 F.3d at 1313-15 (holding that a protester who knew the agency’s interpretation of a solicitation but failed to challenge it before bids were due, waived its ability to object afterwards). It is also well established that when a solicitation contains a patent ambiguity, an offeror must bring the error to the attention of the contracting officer prior to the close of the procurement process, or otherwise waive the ability to pursue the claim in this Court. Id. And so, Yorktel may not challenge an alleged error or patent ambiguity in the RFP for the SEWP V Contract here, if it failed to raise this error or ambiguity during the procurement process. Id.

In this case, the administrative record shows that Yorktel waived the ability to pursue its challenge to the size standard for the SEWP V Contract because it did not raise the patent ambiguity in the RFP regarding the size standard for the RFP before the close of the procurement process. First, the administrative record makes clear that NASA addressed and attempted to clarify the RFP’s size standard requirement in the agency’s responses to several questions from offerors about the size standard for the SEWP V Contract. In this regard, the record evidence shows that NASA responded to several questions about the size standard for the SEWP V Contract during the question-and-answer phase of the procurement. AR at 975-1183. For example, in response to question 511 regarding the size standard for the subject contract, NASA replied that the proper size standard for the SEWP V Contract was 150 employees. Id. at 1069. In response to question 861, NASA also clarified that the size standard for the contract was 150 employees and that businesses with more than 150 employees would be considered “other than small” and would need to complete a small business subcontracting plan to remain eligible for award. Id. at 1123. NASA further clarified in response to other questions that the size standard for the contract is 150 employees. Id. at 1139, 1144, 1156.

The record evidence also shows that NASA published these questions and answers on a website for the SEWP V procurement and that this information was readily available to all offerors, including Yorktel. See AR at 2. The record evidence also shows that NASA amended the RFP to incorporate the agency’s responses to the aforementioned questions into the RFP’s size standard requirement. In this regard, this Court has long recognized that agency responses during the question-and-answer process, “when circulated to all offerors as an attachment to an amendment signed by the contracting officer, constitute an amendment of the solicitation.” Bayfirst Solutions, LLC v. United States, 102 Fed. Cl. 677, 689 n.15 (2012) (citing Scientific Research Corp., B-260478, 1995 WL 404157, at *5 (Comp. Gen. July 10, 1995)). In this case, the administrative record shows that three amendments to the RFP−Amendments 7, 8, and 10−were circulated to offerors and that these amendments were also accompanied by a cover letter that includes the link to the website that contained the questions and answers regarding the size standard for the SEWP V Contract.  See AR at 265-66, 465-66, 631-32, 802. In addition, these cover letters have been signed by the contracting officer and the amendment attached to each letter has also been signed by the contracting officer. Id. at 266-67, 466-67, 632-33, 803-04. And so, the evidence in the record demonstrates that NASA amended the RFP to incorporate the agency’s responses to questions about the size standard. Bayfirst Solutions, 102 Fed. Cl. at 689 n.15 (citing Scientific Research Corp., B-260478, 1995 WL 404157, at *5 (Comp. Gen. July 10, 1995)).

The record evidence also shows that NASA’s responses to questions about the size standard for the SEWP V Contract created a patent ambiguity in the RFP. In this regard, the RFP provides that:

The NAICS code and small business size standard for this acquisition appear in Block 10 of the solicitation cover sheet (SF 1449). However, the small business size standard for a concern which submits an offer in its own name, but which proposes to furnish an item which it did not itself manufacture, is 500 employees.

AR at 130; see 48 C.F.R. § 52.212-1. NASA, however, clarified in the agency’s responses to questions regarding the size standard for the SEWP V Contract that the size standard is 150 employees. AR at 1069, 1123, 1139, 1144, 1156. These responses created an ambiguity about the size standard for the RFP that should have been evident to Yorktel and to other offerors. As the Government Accountability Office has recognized, the responsibility is on the offeror to seek clarification or challenge the patent ambiguity where amendments made through the questionand-answer process create an inconsistency with other solicitation terms. Linguistics Systems, Inc., B-296221, 2005 CPD ¶ 104, 2005 WL 1299516, at *1 (Comp. Gen. June 1, 2005). Yorktel had the obligation in this case to raise the patent ambiguity in the RFP regarding the appropriate size standard before the end of the procurement process. See Blue & Gold Fleet, 492 F.3d at 1313; see Pyramid Real Estate Servs., LLC v. United States, 95 Fed. Cl. 125, 137 n.16 (2010) (rejecting an offeror’s protest because it failed to raise concerns about the solicitation during the proposal process despite the contracting agency’s answers and amendments to related provisions). Because it is without dispute that Yorktel did not do so here, Yorktel’s claim challenging this size standard is untimely. See Pl. Reply at 15-16; Blue & Gold Fleet, 492 F.3d at 1313.  (York Telecom Company v. U. S., No. 15-489C, January 13, 2017)


In CGI, the United States Department of Health and Human Service’s Centers for Medicare and Medicaid Services issued requests for quotes in order to issue contracts that would use the awardees to determine if Medicare claims had been correctly paid. See id. at 1347. The Federal Circuit indicated if the contractor identified an overpayment, the agency would send a demand letter to the provider and repayment, and then pay the contractor a contingency fee. See id. In CGI, CGI protested the payment terms of the requests for quotes, contending that the terms violated certain statutory and regulatory provisions. See id. As noted by the Federal Circuit:

Five different contractors bid on the 2014 RFQs, but CGI did not. Instead, before bidding closed, CGI filed a timely pre-award protest at the Government Accountability Office (“GAO”) challenging the revised payment terms. While the GAO protest was pending, the bidding period closed. The GAO subsequently denied the protest. Three business days later, CGI filed a protest in the United States Court of Federal Claims.

Id. at 1348. The Federal Circuit recognized that “CGI never submitted a bid in response to the 2014 RFQs and thus is not an actual bidder. CGI must therefore show that it was a prospective bidder at the time it filed its protest in the Court of Federal Claims. We hold that it has made such a showing.” Id. As explained by the Federal Circuit:

CGI was a prospective bidder when it promptly initiated and diligently pressed its protest in the GAO forum, which Congress has encouraged protestors to use before suing in court. Unsuccessful in the GAO, it immediately filed for relief in court. We do not think that Congress meant for a protestor in CGI's position to lose its entitlement to sue just because delays engendered by the GAO adjudicatory process pushed completion past the closing date for bid submissions. Concluding, as we do, that CGI filed a protest prior to the close of bidding and thereby established its prospective bidder status, and that CGI thereafter diligently pursued its rights, CGI has prospective bidder status to pursue its Court of Federal Claims protest.

Id. at 1351. Furthermore, the Federal Circuit concluded that “CGI retained its prospective bidder status throughout the pendency of its GAO protest because it was continuously pursuing its challenge to the payment terms in the 2014 RFQs.” Id. at 1349-50 (footnote omitted).

Palantir USG’s position is best compared to that of the protestor in CGI. Like Palantir USG in the above captioned protest, the protestor in CGI did not submit a proposal in response to the solicitation. Likewise, the CGI protestor filed a GAO protest prior to the close of bidding to establish prospective bidder status, even though the timeframe for submitting a proposal lapsed after the GAO protest was filed. As in CGI, Palantir USG subsequently filed suit in this court after receiving a negative decision at the GAO, but before the agency had made an award pursuant to the solicitation. Therefore, like the protestor in CGI, who “filed pre-award bid protests at the GAO, claiming that, contrary to FAR Part 12, the payment terms were inconsistent with customary commercial practice, unduly restrictive of competition, and violated the recovery audit program's enabling statute as well as prompt payment requirements,” CGI Fed. Inc. v. United States, 118 Fed. Cl. 337, 346 (2014), rev’d, 779 F.3d 1346 (Fed. Cir. 2015), before this court, Palantir USG, likewise, is seeking to challenge the validity of the solicitation, not evaluations of the offers received, charging that the agency has violated statutory provisions, most notably 10 U.S.C. § 2377.

(sections deleted)

In the case of Palantir USG, and applying the specific facts and circumstances of Palantir USG’s situation, the court concludes that the 43 days delay does not deprive Palantir USG of its status as a perspective bidder. During the delay the Army did not issue a contract award pursuant to the solicitation. Although the Army, as indicated by defendant’s counsel at oral argument, may have taken steps toward award by undertaking evaluations or conducting discussions, the posture of the protest remains a pre-award protest. Although not dispositive, in CGI the Federal Circuit not only focused on the delay in seeking relief in this court, but also on whether the government had issued a contract award. As the Federal Circuit in CGI indicated when comparing the CGI protestor to the protestor in Rex Service, “Rex failed to continue to pursue its rights in a diligent fashion, and thus ceased to be a prospective bidder. Rex's agency denial was met with inaction. That inaction persisted for months, and during that time the government awarded the contract. By the time Rex filed its Court of Federal Claims protest, its agency protest was no longer relevant.” CGI Fed. Inc. v. United States, 779 F.3d at 1351 (citing Rex Serv. Corp. v. United States, 448 F.3d at 1307). Also, when citing to Digitalis Education Solutions, Inc. v. United States, the Federal Circuit in CGI “held that a protestor that failed to submit the required statement of capability to the agency in the allotted time period and filed its Court of Federal Claims protest more than two months after the contract was awarded was not a prospective bidder.” CGI Fed. Inc. v. United States, 779 F.3d at 1349 (citing Digitalis Educ. Solutions, Inc. v. United States, 664 F.3d at 1383-86). In both Rex Service and Digitalis, delays of “months” combined with the agency awarding a contract changed the protestor’s status as a prospective bidder. CGI Fed. Inc. v. United States, 779 F.3d at 1349, 1351. As described above, Palantir USG’s delay was less than two months and the protest was filed in this court before a contract was awarded. Based on the factual circumstances presented, the court finds that Palantir USG has not lost its status as a prospective bidder.  (Palantir Technologies Inc. and Palantir USG, Inc., v U. S. No. 16-784C, August 22, 2016)


3. The Court’s Resolution.

i. The May 20, 2016 Amended Complaint’s Count I Claims Based On FAR §§ 1.4 And 15.101-2 Are Untimely.

It is well-established that “a party who has the opportunity to object to the terms of a government solicitation containing a patent error and fails to do so prior to the close of the bidding process waives its ability to raise the same objection subsequently in a bid protest action in the [United States] Court of Federal Claims.” Blue & Gold Fleet, L.P. v. United States, 492 F.3d 1308, 1313 (Fed. Cir. 2007) (emphasis added). LaQuay argued that the Solicitation’s provisions allowing USTRANSCOM to conduct discussions was not a patent error, but a latent ambiguity and therefore, LaQuay’s challenge is timely. Pl. MMJAR at 19.

In determining whether a solicitation’s provisions contain a patent error or a latent ambiguity, the court must first determine whether the Solicitation’s provisions governing discussions were ambiguous. See NVT Technologies, Inc. v. United States, 370 F.3d 1153, 1159 (Fed. Cir. 2004) (“To show an ambiguity it is not enough that the parties differ in their respective interpretations of a contract term. [Instead], both interpretations must fall within a ‘zone of reasonableness.’”); see also Avedon Corp. v. United States, 15 Cl. Ct. 771, 776 (1988) (“A contract is ambiguous[,] if it sustains the interpretations advanced by both parties.”). Under LaQuay’s interpretation, the Source Selection Authority must automatically award a technically Acceptable offeror that has the highest price, without discussion. Pl. MMJAR at 17–18. But this interpretation directly contradicts the terms of the Solicitation. The Solicitation clearly stated that the Source Selection Authority would conduct discussions if the lowest ranked TPP offeror did not have Acceptable ratings or a fair and reasonable price. AR Tab 16 at 188 (“If the Government is unable to determine the lowest ranked TPP offeror’s prices to be fair and reasonable or if an [U]nacceptable rating is received . . . , the next lowest ranked TPP offer will be evaluated. This process will continue (in order of ascending price) until an offeror is judged to have . . . [A]cceptable [ratings] . . . or until all offerors have been evaluated. At this point, the Source Selection Authority will determine whether it is in the Government’s best interest to award without discussions or enter into discussions.”). LaQuay’s interpretation is unreasonable and the Solicitation is not ambiguous. Accordingly, the May 20, 2016 Amended Complaint’s challenge based on FAR 1.4 and the Source Selection Agency’s decision to engage in discussions with offerors is untimely.

Even assuming arguendo that the May 20, 2016 Amended Complaint’s allegation was timely, USTRANSCOM did not improperly deviate from the FAR by conducting discussions. An improper deviation from the FAR occurs when an agency uses “a policy, procedure, solicitation provision . . . , contract clause . . . , method, or practice of conducting acquisitions of any kind at any stage of the acquisition process that is inconsistent with the FAR.” FAR § 1.401(a). Individual deviations from the FAR “may be authorized by the agency head. The contracting officer must document the justification and agency approval in the contract file.” FAR § 1.403. The Solicitation expressly stated that it would use “low priced technically acceptable (LPTA) source selection procedures (FAR 15.101-2).” AR Tab 16 at 188. The LPTA procedures in FAR § 15.101-2 permits an agency to engage in discussions with offerors when conducting an LPTA procurement. FAR § 15.101-2(b)(4) (“Exchanges may occur[.]”). As such, even assuming LaQuay’s October 19, 2015 Proposal should have been determined technically Acceptable, USTRANSCOM’s decision to conduct discussions with offerors did not deviate from the FAR.

In addition, the May 20, 2016 Amended Complaint’s claim based on FAR § 15.101-2 also is untimely. The Solicitation enumerated the specific procedures that USTRANSCOM would consider in evaluating the offers and was unambiguous about the Source Selection Authority’s discretion to engage in discussions. AR Tab 16 at 188. For example, the Solicitation provided that only the lowest ranked TPP offeror with Acceptable ratings and whose price is determined to be fair and reasonable will be awarded the contract without further discussions. AR Tab 16 at 188. In the event the lowest ranked TPP offeror’s prices were not fair and reasonable or if the lowest ranked TPP offeror receives an Unacceptable rating, then the Source Selection Authority would evaluate the next lowest TPP offeror. AR Tab 16 at 188. If the next lowest TPP offeror receives Acceptable ratings, then “the Source Selection Authority will determine whether it is in the Government’s best interest to award without discussions or enter into discussions.” AR Tab 16 at 188 (emphasis added). The parties do not dispute that LaQuay’s October 19, 2015 Proposal offered [REDACTED] TPP. AR Tab 33 at 825. Therefore, under the Solicitation’s terms, even if LaQuay’s October 19, 2015 Proposal was the only proposal with Acceptable ratings, the Source Selection Authority should have found that it was in the best interest of the Government to enter into discussions. AR Tab 16 at 188. Accordingly, the May 20, 2016 Amended Complaint’s challenge is untimely. Even if the May 20, 2016 Amended Complaint’s challenge, based on FAR § 15.101-2 was timely, the LPTA procedures in FAR § 15.101-2 permits an agency to engage in discussions with offerors when conducting an LPTA procurement. See FAR § 15.101-2(b)(4) (“Exchanges may occur[.]”). As such, USTRANSCOM did not violate FAR § 15.101-2 by conducting discussions with offerors.

For these reasons, the court has determined that the May 20, 2016 Amended Complaint’s FAR § 1.4 et seq. and FAR § 15.101-2 challenges to the Solicitation are untimely. Nevertheless, USTRANSCOM did not deviate from the FAR and therefore, has not violated FAR § 1.4 et seq. The court also has determined that USTRANSCOM did not violate FAR § 15.101-2.   (T.W. LaQuay Marine, LLC  v. U. S. and  JAR Assets, Inc. No. 16-544C, August 16, 2016)


Plaintiff Excelsior Ambulance Service, Inc. (“Excelsior”) successfully protested the award of a contract by the United States Department of Veterans Affairs (“VA”) to LMC Med Transportation, LLC (“LMC”). LMC now moves for leave to intervene in this protest for the purpose of appealing the merits of this court’s decision in Excelsior’s favor. For the reasons set forth below, the court denies LMC’s motion.

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In considering whether LMC’s motion is timely, the court examines: (1) the length of time a putative intervenor knew or should have known of its right to intervene prior to filing its motion; (2) whether the prejudice to the rights of the existing litigants, if intervention is granted, is outweighed by the prejudice a putative intervenor would suffer if intervention is denied; and (3) the existence of unusual circumstances that weigh in favor of or against the granting of the motion. Belton Indus., Inc. v. United States, 6 F.3d 756, 762 (Fed. Cir. 1993); Sumitomo Metal Indus., Ltd. v. Babcock & Wilcox Co., 669 F.2d 703, 707 (C.C.P.A. 1982). “Timeliness is to be determined from all the circumstances,” and is an issue committed to the court’s discretion. NAACP v. New York, 413 U.S. 345, 366 (1973).

B. LMC’s Motion for Leave to Intervene Is Not Timely

With respect to the first factor, LMC concedes that it knew of its right to intervene in this protest on February 27, 2015, when Excelsior filed its complaint. LMC argues, however, that it chose not to intervene at that time because it was misinformed by the contracting officer regarding the nature of Excelsior’s protest. Specifically, LMC contends that the contracting officer only indicated that the protest concerned pricing, and that had the contracting officer accurately described all of the grounds for Excelsior’s protest, LMC would likely have retained an attorney and pursued intervention.

LMC’s reliance on the information it purportedly received from the contracting officer is misplaced. Contracting officers are not required by statute or regulation to advise successful offerors of the grounds of a protest lodged at the Court of Federal Claims. Consequently, it is a successful offeror’s responsibility to ascertain the basis of a protest filed in this court.

LMC also argues that it could not have known the basis of Excelsior’s protest until the court released a public version of its Opinion and Order on December 15, 2015. LMC ignores the fact that Excelsior’s complaint was publicly available, via PACER, on the date that it was filed. Accordingly, plaintiff should have known of its right to intervene in this protest on February 27, 2015, eleven months before it filed its motion for leave to intervene. The length of this delay, coupled with the fact that LMC did not file its motion until after the entry of judgment, weighs against allowing LMC to intervene in this protest.

With respect to the second factor, LMC contends that it would be prejudiced if it was not permitted to intervene in this protest because it would be prevented from appealing a judgment by which it was actually aggrieved. LMC further contends that neither Excelsior nor defendant would be prejudiced by its intervention because its intent is to intervene only for the purpose of pursuing an appeal. LMC’s contentions are not persuasive.

In support of its first contention, LMC relies on the decision in City of Cleveland v. Ohio, 508 F.3d 827 (6th Cir. 2007). In that case, the plaintiff was attempting to appeal a judgment in favor of the third-party defendant despite the district court’s having denied the plaintiff’s motion to intervene against the third-party defendant. Id. at 836. The appellate court held:

[A] party to an action in a district court has standing to appeal a judgment or order by which it is actually aggrieved even though that litigant was not a party to the claim addressed by the judgment or order, despite the denial of a motion to intervene in the [claim], as long as the appellant was treated as a de facto party to that claim in the lower court.

Id. at 837 (first emphasis added). This holding has no application in this protest as LMC was not a party to the action in this court.

LMC’s second contention fares no better. Excelsior and defendant expended significant time and resources prosecuting the bid protest and litigation has concluded. If LMC were permitted to intervene at this stage and bring an appeal, Excelsior and defendant would expend additional time and resources to litigate issues that were, or should have been, raised while the protest was pending before the court. This waste of additional time and resources is prejudicial to Excelsior and defendant, and outweighs any prejudice to LMC.

Finally, with respect to the third factor, LMC does not describe any unusual circumstances that weigh in favor of granting its motion.  (Excelsior Ambulance Service, Inc. v. U. S.. No. 15-189C, March 23, 2016)  (pdf)


A. Statutory and Regulatory Framework

Through the JWOD Act, Congress created the Committee for Purchase from People Who are Blind or Severely Disabled (“Committee” or “Commission”) to administer the AbilityOne Program (“AbilityOne” or “Program”). 41 U.S.C. §§ 8502-03. The Committee consists of fifteen presidential appointees representing various federal agencies as well as the blind and severely disabled communities. Id. at § 8502; 41 C.F.R. § 51-1.3. The Committee’s mandate is to identify programs and services furnished by qualifying nonprofit agencies that are suitable for government procurement. Congress also directed the Committee to designate central nonprofit agencies to assist in maintaining the Procurement List and to evaluate the suitability of qualifying nonprofit agencies. 41 U.S.C. § 8503(c). Under this mandate, the Committee selected National Industries for the Blind and SourceAmerica, previously named National Industries for the Severely Handicapped, as its designated central nonprofit agencies.


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1. Delay

SourceAmerica notified Peckham and NTI of the outcome of SSN 2333 via email on January 23, 2014, and debriefed NTI on January 29, 2014. AR 2642-45. NTI filed first and second-level appeals with SourceAmerica on February 6 and March 4, 2014. Id. 256, 265. After losing both internal appeals, NTI appealed to the AbilityOne Commission on April 4, 2014. Id. 131-43. Following a review of NTI’s allegations and meetings with both NTI and SourceAmerica, the Commission, acting through Ms. Ballard, denied the protest on May 29, 2014. Id. 152. After a period of public notice and comment, the Commission added Peckham to the Procurement List on September 15, 2014. NTI filed the present action on March 20, 2015, more than six months after the Commission finalized the award to Peckham, more than eight months after NTI exhausted its administrative appeals, and more than a year after SourceAmerica announced the outcome of SSN 2333.

This Court has explained that a plaintiff cannot sit on his rights in bringing a bid protest while the Government moves forward with a contract. See, e.g., Benchmark Knife Co. v. United States, 79 Fed. Cl. 731, 737 (2007) (citing Blue & Gold Fleet, 492 F.3d at 1314). To this end, this Court has found a “strong argument in favor of applying laches” when a plaintiff chose to wait two months to file suit because he was weighing the cost of litigation. Software Testing Solutions, Inc. v. United States, 58 Fed .Cl. 533, 536 (2003). In this case, NTI waited more than three times as long to bring this bid protest.

NTI offers two primary justifications to explain its delay, both of which are unpersuasive. First, NTI explains that it waited until March 2015 to bring its protest before this Court because it chose to attempt to work directly with the USDA. See, e.g., Sept. 15, 2015 Closing Arg. (“Tr.”) at 33-34; accord Dkt. No. 1-2 (MJ Willard Declaration ¶ 27) (“Since the SSN was placed on the Procurement List on September 15, 2015, [sic] I have been seeking relief directly from the USDA.”). Second, NTI explains that, due to its modest size and nonprofit status, it wanted to seek less expensive means of relief before litigating this matter. See, e.g., Tr. at 33 (“NTI is a small nonprofit. The idea of rushing into court prematurely and expensively is a very difficult undertaking for them so they attempted everything they could think of prior to going into court.”), id. at 34 (“So, you had two components to it. One is it’s expensive to be here. . . .”).

The Court does not quarrel with NTI’s claims that it was attempting to seek relief through informal channels and by less expensive means. However, in choosing to rely on such alternative efforts, rather than timely filing a bid protest, NTI “simply chose to put all [its] eggs in one basket—ultimately to [its] detriment.” Reilly, 104 Fed. Cl. at 80; see alsoTr. at 34 (“The reason we had to file in March . . . was because we suddenly got word that those discussions had been a waste of time and Peckham was preparing to launch a startup of services.”). While NTI was attempting to avoid the cost of litigation, the USDA and Peckham were proceeding with the call-center contract at a significant cost to both parties.

2. Prejudice

As this Court has explained, the “[m]ere passage of time does not constitute laches.” Mississippi Dep’t, 61 Fed. Cl. at 30. To prevail, the defendant must also show how the plaintiff’s delay in bringing a claim caused the defendant to suffer prejudice. In the case of a bid protest, “[a] plaintiff may choose to sit on his rights while a government contract proceeds, but he will be barred from protesting if the Government is prejudiced as a consequence.” Reilly, 104 Fed. Cl. at 80; see also 30A C.J.S. Equity § 138 (“Laches is not based merely upon time, but also upon changes in conditions or relationships involved with the claim, and the consequent inequity of permitting the claim to be enforced.”).

In the present case, NTI’s decision to sit on its right to bring this claim for six months directly and substantially prejudiced both Peckham and the Government. Peckham has “incur[red] millions of dollars in costs that remain unreimbursed pending this bid protest.” Peckham Mem. at 26; see also Tr. at 156 (“Peckham has had to outlay resources for its facilities, outlay resources for the training program, for the software.”). Also, the Government has incurred and will continue to incur substantial costs pending resolution of this matter. NTI’s delay has forced the USDA to extend its contract with incumbent IBM. See Peckham Reply at 14 (explaining that the USDA is holding the launch of its contract with Peckham “due to the TRO that was issued in this case, and its impacts after only one week.”). Finally, pending a result in this case, task orders that should have gone into effect in July remain on hold. Id. at 15; see also Tr. at 156 (explaining that two of the four USDA IT task orders remain unimplemented pending resolution of this matter).

For these reasons, the Court finds that application of the laches doctrine is appropriate in this case. NTI could have brought this action as much as six months before it did so and its justifications for the delay are inadequate. As a result of NTI’s delay, both Peckham and the Government have suffered economic prejudice, much of which could have been avoided had NTI brought a timely bid protest. (National Telecommuting Institute v. U. S.,Peckham Vocational Industries and SourceAmerica, No. 15-293C, October 28, 2015)  (pdf)


A. NVE Waived its Right to Challenge the Agency’s Corrective Action Decision.

As an initial matter, the Court finds that NVE waived its right to challenge the agency’s decision to take corrective action and to reopen discussions and reevaluate proposals with offerors in the competitive range after NAVFAC already awarded NVE the NSA Bethesda contract. A party who participates in a second round of proposal submissions rather than protesting cannot subsequently challenge an agency’s decision to reopen discussions or reevaluate proposals. See Sheridan Corp. v. United States, 95 Fed. Cl. 141, 149-150 (2010) (“were the Court to dismiss Sheridan’s claims as not ripe for review, the current protest grounds later could be challenged as untimely if Sheridan does not prevail during the resolicitation process”); see also Cubic Def. Sys. v. United States, 45 Fed. Cl. 450, 461 (1999) (“Cubic failed to complain of this alleged error at the appropriate time – when the Air Force continued to allow Metric to compete, or at least prior to submitting its final offer”). Vendors cannot “sit on their rights to challenge what they believe is an unfair solicitation, roll the dice and see if they receive award and then, if unsuccessful, claim the solicitation was infirm.” Blue & Gold Fleet, 492 F.3d at 1313.

Here, once NAVFAC notified NVE that it would reopen discussions with offerors in the competitive range, the agency’s proposed corrective action became ripe for protest. See AR Tab 50. Thus, if NVE had concerns with the agency’s proposed corrective action, the time to protest was before the revised proposals were due. See Cubic Def. Sys., 94 Fed. Cl. at 461. NVE was not permitted to wait for the agency to complete the corrective action to see if it received the award. Blue & Gold Fleet, 492 F.3d at 1313. Plaintiff fully participated in the second round of proposal evaluations instead of protesting the agency’s actions. See AR Tab 36, at 1904. Accordingly, NVE’s challenges regarding NAVFAC’s decision to take corrective action are waived.  (NVE, Inc. v. U. S. and ACE Maintenance & Services, Inc., No. 15-111C, May 27, 2015)  (pdf)


B. Waiver

The waiver rule established by the United States Court of Appeals for the Federal Circuit states that “a party who has the opportunity to object to the terms of a government solicitation containing a patent error and fails to do so prior to the close of the bidding process waives its ability to raise the same objection afterwards in a § 1491(b) action in the Court of Federal Claims.” Blue & Gold Fleet, L.P. v. United States, 492 F.3d 1308, 1315 (Fed. Cir. 2007) (Blue & Gold Fleet). As this court has noted, “Blue & Gold [Fleet] has been consistently interpreted as standing for the proposition that ‘[t]he proper time to challenge the provisions of a prospectus is before bids are required to be submitted.’” Allied Materials & Equip. Co. v. United States, 81 Fed. Cl. 448, 459 (2008) (quoting Frazier v. United States, 79 Fed. Cl. 148, 177 (2007)) (other citations omitted). Among the many reasons for this rule cited by the Federal Circuit is the need for “‘expeditious resolution’” of bid protests before this court. Blue & Gold Fleet, 492 F.3d at 1315 (quoting 28 U.S.C. § 1491(b)(3)). The waiver rule thus “avoids costly after the fact litigation.” Infrastructure Def. Techs., LLC v. United States, 81 Fed. Cl. 375, 389 (2008) (citing Blue & Gold Fleet, 492 F.3d at 1314).

Shamrock, along with three other vendors, was invited to submit a proposal to become the back-up prime vendor for the Supply Center’s customers at Fort Bliss. AR at 606-10. The deadline for receipt of bids was extended at Shamrock’s request. Id. at 611-13. Shamrock did not file a protest of the terms of the solicitation before bids were due on September 1, 2009. Instead, Shamrock filed its bid protest complaint in this court on February 18, 2010, after award of the contract work and less than a week before a back-up prime vendor was scheduled to begin servicing customers at Fort Bliss.

The solicitation contained an explicit declaration that the Supply Center would be awarding contract work at Fort Bliss to a back-up prime vendor. See AR at 606-10. Any protest of that solicitation term was due before September 1, 2009. Because Shamrock waited until February 18, 2010 to file its protest, plaintiff waived its right to protest the legality of the solicitation in this court.

Plaintiff raises two arguments in a vain attempt to forestall the inevitable conclusion that Blue & Gold Fleet bars its bid protest in this court. First, plaintiff suggests that the waiver rule has no application to a plaintiff who abstains from participating in a procurement and who files a protest after the award of a contract. In other words, waiver, in plaintiff’s view, only occurs if “the contractor submitted a bid then waited to see if it would win before filing a protest.” Pl.’s 2d Reply at 11. Unfortunately for plaintiff, there is no support for this limited view of the waiver rule in Blue & Gold Fleet or in cases interpreting the waiver rule. The unsurprising reason that the rule announced in Blue & Gold Fleet has been applied primarily to protestors who have submitted bids in response to solicitations is that actual bidders are “interested parties” who have standing to bring post-award bid protests.12 See, e.g., Rex Service, 448 F.3d at 1308 (noting that both actual and prospective bidders may have bid protest standing, but that “‘the opportunity to qualify either as an actual or a prospective bidder ends when the proposal period ends’” (quoting MCI, 878 F.2d at 365)). The waiver rule in Blue & Gold Fleet clearly states that a challenge to the terms of a solicitation is untimely and waived if filed after the bidding period. 492 F.3d at 1315. Shamrock waived its right to object to the Supply Center’s award of the back-up prime vendor contract work at Fort Bliss.

Plaintiff also contends that Shamrock was “not aware of the full details” of the contract award to Foodservice until “well after the bidding period had closed.” Pl.’s 2d Reply at 12. Therefore, plaintiff asserts that Blue & Gold Fleet’s waiver rule “does not bar Shamrock’s bid protest.” Id. Plaintiff’s position is flawed. Shamrock has argued, and continues to argue, that the Supply Center had no right to compete the Fort Bliss portion of Shamrock’s contract, and that argument has been waived under the precedent of Blue & Gold Fleet. All of plaintiff’s bid protest arguments have thus far focused on the illegality of the contract mechanisms by which the contract work at Fort Bliss was awarded to Foodservice. These mechanisms were readily discernable in the solicitation provided to Shamrock. It is of no consequence that the minutiae of the contract award to Foodservice were not revealed in the solicitation. The “full details” of the contract award to Foodservice do not permit Shamrock to escape the timeliness requirements set forth in Blue & Gold Fleet.  (Shamrock Foods Company v. U. S. and U. S. Foodservice Inc., No 10-109C, April 22, 2010) (pdf)


I. Unisys's Price-Related Claims Must Be Dismissed Pursuant to RCFC 12(b)(6).

In Blue & Gold Fleet, the incumbent on a contract with the United States to provide ferry service, ticket sales, and other concessions for visitors to Alcatraz contested the award of a new contract for these services to another offeror, Hornblower. Blue & Gold Fleet, 492 F.3d 1308. The plaintiff argued that the government should have applied the Service Contract Act, 41 U.S.C. §§ 351-358 (1976), to the solicitation, and found accordingly that Hornblower's proposal was not financially viable because it failed to take into account the wages and benefits required of a contractor to be paid to its employees under the Service Contract Act. Blue & Gold Fleet, 492 F.3d at 1312. The Federal Circuit held that although the plaintiff characterized this as a challenge to the evaluation of Hornblower's proposal, "this argument [was] properly characterized as a challenge to the terms of the solicitation." Id. at 1313. Under Blue & Gold Fleet, "a party who has the opportunity to object to the terms of a government solicitation containing a patent error and fails to do so prior to the close of the bidding process waives its ability to raise the same objection subsequently in a bid protest action in the Court of Federal Claims." Id. Holding that such was the case with Blue & Gold Fleet's protest, the Federal Circuit determined that the plaintiff's objections to the failure to include the Service Contract Act's requirements in the solicitation were waived because they were not timely filed. Id. at 1316.

This court finds that Unisys's price-related claims are barred by the Federal Circuit's holding in Blue & Gold Fleet because the alleged error of which the plaintiff complains was clear before the deadline for the receipt of quotes. Accordingly, Unisys has waived its right to protest the price evaluation methods contained in the RFQ, and these claims must be dismissed pursuant to RCFC 12(b)(6).  (Unisys Corp. v. U. S and Lockheed Martin Corp., No. 09-271C, September 17, 2009) (pdf)


B. Timeliness of Blackwater's Protest

Defendant and APT request the Court to dismiss Count I of the complaint as untimely because Blackwater did not challenge the terms of the Solicitation prior to the closing date for receipt of proposals. Blackwater alleges in Count I that the Navy failed to comply with a material requirement of the Solicitation that training take place in the "Norfolk, VA, FCA" when it accepted APT's proposal to conduct the M-60 live-fire training course at Fort Pickett in Blackstone, Virginia. According to Defendant and APT, Blackwater's interpretation of "Norfolk, VA, FCA" as excluding Blackstone, Virginia creates a patent ambiguity on whether the Solicitation "required" or deemed it "highly desirable" that the M-60 live-fire training occur within the "Norfolk, VA, FCA."

A disappointed bidder must seek clarification of any Solicitation terms containing patent errors prior to the closing of the bidding process. Blue & Gold Fleet, L.P. v. United States, 492 F.3d 1308, 1313 (Fed. Cir. 2007); see also Benchmade Knife Co., Inc., 79 Fed. Cl. at 737; Erinys Iraq Ltd. v. United States, 78 Fed. Cl. 518, 533 n.7 (2007); Scott v. United States, 78 Fed. Cl. 151, 154 n.2 (2007); Moore's Cafeteria Servs. v. United States, 77 Fed. Cl. 180, 185 (2007).

Here, however, Blackwater does not allege that the term "Norfolk, VA, FCA" contains a patent ambiguity. Rather, Blackwater asserts that the requirement for training to be conducted in the "Norfolk, VA, FCA" is a clear geographical restriction that does not require further interpretation. In support of this argument, Blackwater cites the SOW, which states: "[t]his Statement of Work establishes the requirements for the instruction of Master at Arms Class 'A' School in the Norfolk Fleet Concentration Area (FCA)." AR 1550. The SOW then specifies that "[t]he training will be conducted in the Norfolk, VA, FCA." Id. Blackwater also points to the Navy's answer to a potential offeror's question about the location of the training, which was contained in Amendment 0003. It states that the "[c]ourse will be taught at the vendor's facility, which must be located in the Norfolk FCA, and within a one hour rush hour commute from NAS Oceana Annex Dam Neck." AR 254. A later amendment confirms that "it is highly desirable" for the contractor's facilities to be located within a one-hour driving distance from the student pick-up point of the FCA base but does not alter the SOW requirement that "training will be conducted in the Norfolk, VA, FCA." AR 1550, 1555. According to Blackwater, the Navy has described an "FCA" in the Chief of Naval Operations' Navy Ashore Vision 2030 as "an informal grouping of Navy installations within a Navy Region that are in relatively close proximity (commuting distance) to each other and in the same metropolitan area such that they can capitalize on sharing capability." AR 2340.

The Court sees no inconsistencies in the Solicitation language requiring training to take place in the "Norfolk, VA, FCA" and finding it "highly desirable" that the contractor facilities be located within a one-hour driving distance of "NAS, Oceana Annex, Dam Neck." The Court agrees with Blackwater's interpretation that "the Norfolk, VA, FCA" encompasses an area greater in scope than a one-hour driving distance from the student pick-up point. Furthermore, one can harmonize the "Norfolk, VA, FCA" training requirement with the Solicitation language permitting live-fire training to occur "at a place geographically separate from the contractor's facilities." The MAA Class "A" School training program requires 33 days of instructional training, only seven of which would occur outside the classroom at a live-fire training range. AR 171-82. The Solicitation states that "training will occur within the Norfolk, VA, FCA," and the Navy later clarified that the "[c]ourse will be taught at the vendor's facility, which must be located in the Norfolk FCA." AR 254 (emphasis added). The Solicitation defines "facilities" separately from "ranges," which suggests that the Norfolk, VA, FCA training requirement applies only to courses taught at the vendor's facility. The SOW also contains a section on "Training Facilities," which describes the environmental standards required for classroom facilities as opposed to firing ranges. AR 1653. Based on the foregoing, the Court concludes that "facilities" refers exclusively to the site for classroom training. In a separate provision, the Solicitation requires the contractor to provide lunch "[i]n the event that 'live fire' evolutions take place geographically separate from the contractor's facilities . . . ." AR 13 (emphasis added). Live-fire training for the M-60 machine gun qualifies as a one-day "evolution" under the SOW. AR 1655. Taken together, the Court interprets the Norfolk, VA, FCA and the livefire evolution provisions to mean that the contractor must provide in-classroom instructional training at the contractor's facilities within the Norfolk, VA, FCA but that it may conduct the seven days of live-fire training in a separate location.

In the absence of ambiguity in the Solicitation's terms, Blackwater has not waived its claim under Count I of the complaint. The essence of Blackwater's claim is that the Navy failed to comply with a material requirement in the Solicitation by accepting a proposal that did not provide M-60 live-fire training within the Norfolk, VA, FCA. Blackwater has never challenged the meaning of "Norfolk, VA, FCA." A term is ambiguous only "when [it] is susceptible to more than one reasonable interpretation." E.L. Hamm & Assocs., Inc. v. England, 379 F.3d 1334, 1341 (Fed. Cir. 2004) (citing Metric Constructors, Inc. v. NASA, 169 F.3d 747, 751 (Fed. Cir.1999)). Defendant has not proposed an alternative reasonable interpretation to the one offered by Blackwater above and, therefore, cannot create a patent ambiguity where one does not exist.

Even if some ambiguity does exist in the meaning of "Norfolk, VA FCA," the ambiguity is latent and does not compel Blackwater to challenge it prior to the close of the bidding process. The timeliness rule applies only to a patent ambiguity in a Solicitation, or one that is "obvious, gross [or] glaring, so that plaintiff contractor had a duty to inquire about it at the start." H&M Moving, Inc. v. United States, 499 F.2d 660, 671 (Ct. Cl. 1974). The Federal Circuit has explained the purpose of limiting the timeliness rule to patent ambiguities:

While this court has invoked the patent ambiguity doctrine in appropriate cases, it has not given the doctrine broad application. Because the doctrine has the effect of relieving the government from the consequences of its own poorly drafted contracts, the doctrine has been applied only to contract ambiguities that are judged so "patent and glaring" that it is unreasonable for a contractor not to discover and inquire about them . . . . More subtle ambiguities are deemed latent and are accorded an interpretation favorable to the contractor under the doctrine of contra proferentum [sic].

Triax Pac., Inc. v. West, 130 F.3d 1469, 1475 (Fed. Cir. 1997) (citation omitted). The Court declines to find any "obvious, gross [or] glaring" ambiguity in the term "Norfolk, VA, FCA." At best, the term represents a latent ambiguity, which renders Defendant's and APT's timeliness argument unmeritorious.  (Blackwater Lodge & Training Center, Inc., v. U. S. and Automation Precision Technology, LLC, No. 08-905C, April 17, 2009) (pdf)

U. S. Court of Federal Claims - Listing of Decisions
For the Government For the Protester
New York Telecom Company v. U. S., No. 15-489C, January 13, 2017 Blackwater Lodge & Training Center, Inc., v. U. S. and Automation Precision Technology, LLC, No. 08-905C, April 17, 2009 (pdf)
Palantir Technologies Inc. and Palantir USG, Inc., v U. S. No. 16-784C, August 22, 2016  
T.W. LaQuay Marine, LLC  v. U. S. and  JAR Assets, Inc. No. 16-544C, August 16, 2016  
Excelsior Ambulance Service, Inc. v. U. S.. No. 15-189C, March 23, 2016  (pdf)  
National Telecommuting Institute v. U. S.,Peckham Vocational Industries and SourceAmerica, No. 15-293C, October 28, 2015  (pdf)  
NVE, Inc. v. U. S. and ACE Maintenance & Services, Inc., No. 15-111C, May 27, 2015  (pdf)  
Shamrock Foods Company v. U. S. and U. S. Foodservice Inc., No 10-109C, April 22, 2010. (pdf)  
Unisys Corp. v. U. S and Lockheed Martin Corp., No. 09-271C, September 17, 2009 (pdf)  

U. S. Court of Appeals for the Federal Circuit - Key Excerpts

We first consider Comint’s challenge to Amendment 5 of the solicitation. The government urges that Comint failed to preserve its challenge to Amendment 5 by failing to raise it until after the contract was awarded to other bidders. We agree that Comint failed to preserve its challenge to Amendment 5 by not raising the issue before the award of the contract. Because we find that Comint failed to preserve its challenge to Amendment 5, we do not reach the question of whether Comint has standing to protest Amendment 5.

In Blue & Gold Fleet, L.P. v. United States, this court held that “a party who has the opportunity to object to the terms of a government solicitation containing a patent error and fails to do so prior to the close of the bidding process waives its ability to raise the same objection afterwards in a § 1491(b) action in the Court of Federal Claims.” 492 F.3d 1308, 1315 (Fed. Cir. 2007). Comint
points out that Blue & Gold’s holding does not explicitly apply to this case since Comint had no opportunity to challenge the solicitation before “the close of the bidding process,” Amendment 5 having been adopted after the bidding process closed. Amendment 5 was, however, adopted before the award, and we think the reasoning of Blue & Gold applies to all situations in which the protesting party had the opportunity to challenge a solicitation before the award and failed to do so.

There is no question that Comint could have challenged the solicitation before the award. The Federal Acquisition Regulations require that agency contracting officers “consider all protests . . . whether protests are submitted before or after award.” 48 C.F.R. § 33.102(a) (emphasis added). If efforts to obtain relief from the contracting officer fail, the Tucker Act specifically authorizes pre-award challenges. The statute gives the Claims Court “jurisdiction to render judgment on an action by an interested party objecting to a solicitation by a Federal agency,” and further provides that the Claims Court has jurisdiction “without regard to whether suit is instituted before or after the contract is awarded.” 28 U.S.C. § 1491(b)(1).

The same policy underlying Blue & Gold supports its extension to all pre-award situations. In Blue & Gold, we explained:

In the absence of a waiver rule, a contractor with knowledge of a solicitation defect could choose to stay silent . . . . If its [] proposal loses to another bidder, the contractor could then come forward with the defect to restart the bidding process, perhaps with increased knowledge of its competitors. A waiver rule thus prevents contractors from taking advantage of the government and other bidders, and avoids costly after-the-fact litigation.

492 F.3d at 1314.

To be sure, where bringing the challenge prior to the award is not practicable, it may be brought thereafter. But, assuming that there is adequate time in which to do so, a disappointed bidder must bring a challenge to a solicitation containing a patent error or ambiguity prior to the award of the contract. Here, Comint does not claim to have been unaware of the alleged defect in Amendment 5 prior to the award of the contract. Comint signed and returned its copy of the amendment to the agency, signaling its agreement with its terms. Amendment 5 issued on January 19, 2011. Comint signed the amendment on January 20, 2011. The agency did not award the contract until April 6, 2011. Here, Comint had two and a half months between the issuance of Amendment 5 and the award of the contract in which to file its protest. That was more than an adequate opportunity to object. Only now that the contracts have been awarded to other bidders does Comint seek to “restart the bidding process” by objecting to Amendment 5. See id. This is precisely what Blue & Gold forbids.

Comint further attempts to excuse its delay by suggesting that Amendment 5 itself forbade Comint from raising its objections. Comint argues that it could not challenge Amendment 5 because the amendment stated that “[t]he Government will NOT accept any revisions to the proposals.” J.A. 6688 (emphasis in original). However, the amendment only stated that the government would not entertain revised proposals; it did not state that bidders were forbidden from protesting its terms. Nor could it do so.

Finally, we note that the Government Accountability Office (“GAO”) applies a similar rule, setting various time limits in which protests must be submitted. See 4 C.F.R § 21.2. Unless the basis for the protest becomes apparent later than ten days before the award, the GAO does not permit a disappointed bidder to wait until after the award. See id. It would be incongruous to bar later GAO protests but to permit a later court challenge. See Blue & Gold, 492 F.3d at 1314.

In summary, Comint had ample time and opportunity to raise its objections to Amendment 5, but chose instead to wait and see whether it would receive an award of the contract. Having done so, Comint cannot now “come forward with [its objections] to restart the bidding process,” and get a second bite at the apple. See id. Comint failed to preserve its objections to Amendment 5 by not raising them until after the award of the contract.  (COMINT Systems Corporation and EyeIT.com, Inc., Joint Venture v. U. S. and Netcentrics Corporation and Digital Management Inc., and Powertek Corporation, No. 2012-5039, December 7, 2012)

U. S. Court of Appeals for the Federal Circuit - Listing of Decisions
For the Government For the Protester
COMINT Systems Corporation and EyeIT.com, Inc., Joint Venture v. U. S. and Netcentrics Corporation and Digital Management Inc., and Powertek Corporation, No. 2012-5039, December 7, 2012  (pdf)  
   
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