GAO Protest Untimely Even Though Filed Within 10 Days After Debriefing
In Protect the Force, Inc.--Reconsideration File: B-411897.3 (September 30, 2015), the Government notified offerors that it would change a CLINS' maximum quantity to a maximum dollar amount instead. The agency asked offerors to confirm within 5 hours whether their previous prices were still valid, which the protestor did.
The protestor requested a debriefing and filed a protest within 10 days thereafter. The Government moved to dismiss the protest because it was filed more than 10 days after the Government notified offerors of the CLIN change. The protestor countered that the debriefing regulation permitted it to wait and file the protest within 10 days after the debriefing.
The GAO dismissed the protest as untimely even though it was filed within 10 days after the debriefing. The GAO held that the protest challenged the “ground rules” of the solicitation and that the protestor should have filed within 10 days after the Government notified it of this change. The GAO noted that early filing of a protest challenging the terms of a solicitation promotes fundamental fairness in the competitive process and is consistent with its prior decisions:
In conclusion, we recognize now--and recognized in our 2008 Armorworks decision--that our bid protest regulations might be read to permit timely filing of an issue involving an alleged solicitation impropriety until up to 10 days after a required debriefing. Nonetheless, we find that such a conclusion is inconsistent with the intended meaning of our regulation; inconsistent with our prior decision precisely on point; and inconsistent with the principles enunciated by the Federal Circuit in Blue & Gold Fleet, L.P. v. United States, 492 F.3d 1308, 1313-14 (Fed. Cir. 2007), which recognized that requiring the early filing of challenges to alleged solicitation improprieties would promote fundamental fairness in the competitive process by preventing an offeror from taking advantage of an effort to restart the procurement process, potentially armed with increased knowledge of its competitors’ position or information. Accordingly, we conclude that the requester has failed to show that our prior decision contains an error of fact or law.
The lesson learned in this GAO protest is to always file a protest challenging the solicitation terms before proposals are due. For changes to the solicitations made after proposals are submitted, the protest must be filed within 10 days of the change.
