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