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)