Merle M. DeLancey Jr. and Lyndsay Gorton
Almost daily, clients call our office seeking to protest the award of a federal government contract. Unfortunately, sometimes these calls are too late. While contracts can be protested at the agency level, the Court of Federal Claims, and the Government Accountability Office (“GAO”), GAO protests are the most common. The deadlines by which a protester must take certain actions to file a timely protest are confusing. Below we address some of the trickier and/or mandatory deadlines a potential protester must meet to file a timely protest, and we provide a useful sample timeline for protesters to follow during this critical process.
- WHAT: Pre-Award Protests
WHEN TO FILE: On or before the date for submission of proposals
Under GAO’s rules, to be timely, a protester must file a pre-award protest prior to the deadline for submission of proposals. Pre-award protests challenge the terms or “ground rules” of the competition as stated in the solicitation, such as, for example, challenging the Agency to clarify or remove confusing, ambiguous, or unduly restrictive requirements. You must file a pre-award protest on or before the date and time set by an Agency for receipt of proposals. You cannot wait to see whether you win the award and then file a protest challenging the rules of the competition, because by then it will be too late. Also, under GAO’s standing requirements, even if you file a pre-award protest, you must also timely submit a proposal to the Agency. Failure to do so means you do not have standing to protest.
- WHAT: Post-Award Protests—Think Three (3), Five (5), Ten (10)
WHEN: There are two considerations for filing a timely post-award protest:
- Is the protest timely filed so that GAO will consider the protest?
- Is the protest timely filed at GAO so that the automatic stay of performance under the Competition in Contracting Act (“CICA”) will apply to preserve the status quo during the pendency of the protest?
To be timely filed at GAO, a disappointed offeror must file its protest within ten (10) calendar days after “the basis for the protest is known or should have been known, whichever is earlier” OR within five (5) calendar days of a debriefing that is requested and required, whichever is later. Three (3) days after award, certain procurements (FAR Part 15) require the Agency to provide a debriefing. If a debriefing is required, you must submit a written request for a debrief within three (3) calendar days of the date of notification of award. In addition, you must accept the first reasonable date offered by the Agency for the debrief. One consideration to keep in mind is that if you timely request a required debriefing, you may not file a protest until you receive that debriefing, irrespective of the foregoing dates.
- Filing a timely post-award protest can be tricky, so use these considerations to avoid having your protest dismissed on timeliness grounds:
To be timely filed at GAO for purposes of getting the automatic stay, a disappointed offeror needs to file its protest within 10 calendar days of award or within 5 calendar days of a timely requested and required debriefing. You must accept the first offered debriefing date, otherwise you will lose the 5 calendar day allowance, and thus your clock will start to run from the default 10-day period. You should also note that the 5-day period only applies to required debriefings. This is important, because not all procurements entitle a disappointed offeror to a debriefing. For example, a Federal Supply Schedule (“FSS”) procurement under FAR Part 8 does not entitle a disappointed bidder to a debriefing. As such, a voluntary, as opposed to a required, debrief will not impact the timely filing requirement for purposes of obtaining an automatic stay. Finally, regardless of whether you abide by the 10-day or 5-day period for filing to get an automatic stay, it is very important that you file as early as possible on the 10th or 5th day (whichever applies to your case), because the stay is triggered only when GAO actually calls the Agency to notify them that a protest has been filed. While under the law, GAO has 1 business day to make this call (and, therefore, if you are very cautious, you should file on the 9th or 4th day), as a matter of practice, GAO makes the phone call on the same day your protest is filed. But, you should file in the morning or before noon, to give GAO as much time as possible to make this critical call. The foregoing deadlines are critical to filing a timely GAO protest to have GAO hear the merits of the case, and to obtain an automatic stay.
- OTHER IMPORTANT CONSIDERATIONS:
Lastly, the following important considerations should be kept in mind:
In terms of counting the days, if a deadline calendar day falls on a weekend or federal holiday, the date rolls over to the next business day that GAO is open.
Task order protests (under ID/IQ contracts) carry their own set of rules. At present, only GAO can hear ID/IQ task order protests. The Court of Federal Claims has no jurisdiction over task order protests. For the moment, GAO has jurisdiction to hear Department of Defense (“DoD”) task orders valued in excess of $10 million, or protests of such task orders under $10 million that assert that the Agency has changed the scope of the order as it was original solicited. GAO does not presently have jurisdiction over civilian task orders, regardless of dollar amount or scope. This will be changing soon, however. The 2017 National Defense Authorization Act, if signed into law, will raise the jurisdictional bar for DoD task orders from $10 million to over $25 million, but will restore and keep GAO’s jurisdiction over civilian orders at over $10 million.
- SAMPLE TIMELINE:
Set forth below are all of the deadlines of which a protester should be aware, from the date a protest is filed to the date GAO issues a decision. Protesters should seek legal advice before making a determination on whether to protest as an unsuccessful bidder, and for guidance throughout the process.