GAO May Consider a Contractor Attempt to Informally Resolve Solicitation Defects to Be an Agency Protest Starting the Timeliness Clock on Subsequent GAO Protests. Contractors Must Be Aware to Avoid Untimely GAO Protests
David J. Seidman
©David J. Seidman
Contractors must be aware that the General Accountability Office (“GAO”) may deem an informal attempt to resolve a solicitation defect to be an agency protest that starts the clock on when a GAO protest must be filed. GAO has ignored FAR requirements and taken a relaxed view of what communications can be deemed as an agency protest. This has resulted in placing contractors against a clock they did not know was running.
In Western Star Hospital Authority, Inc., B-414198.2, 2017 CPD ¶ 183, GAO states:
Although a letter or e-mail does not have to state explicitly that it is intended as a protest for it to be so considered, it must, at least, express dissatisfaction with an agency decision and request corrective action. Masai Techs. Corp., B–400106, May 27, 2008, 2008 CPD ¶100 at 3. Our Office has long explained that, to be regarded as an agency-level protest, a written statement must convey the intent to protest by a specific expression of dissatisfaction with the agency’s actions, and a request for relief. Coulson Aviation (USA), Inc., B–411525, B–411525.2, Aug. 14, 2015, 2015 CPD ¶272 at 5.
GAO’s interpretation is inconsistent with FAR 33.103(b), “Protests to the Agency,” which states, “Prior to submission of an agency protest, all parties shall use their best efforts to resolve concerns raised by an interested party at the contracting officer level through open and frank discussions.”
A mere expression of dissatisfaction with agency decision and request for corrective action falls dramatically short of the agency protest requirements spelled out in FAR 33.103(d)(2):
(2) Protests shall include the following information:
(i) Name, address, and fax and telephone numbers of the protester.
(ii) Solicitation or contract number.
(iii) Detailed statement of the legal and factual grounds for the protest, to include a description of resulting prejudice to the protester.
(iv) Copies of relevant documents.
(v) Request for a ruling by the agency.
(vi) Statement as to the form of relief requested.
(vii) All information establishing that the protester is an interested party for the purpose of filing a protest.
(viii) All information establishing the timeliness of the protest.
The most significant of these requirements is FAR 33.103 (d)(2)(v) which requires a “Request for a ruling by the agency”. Absent a request for a ruling by the agency or statement that the document is a protest means contractors can file unintended agency protests that start the GAO clock running.
GAO bid protest regulations, 4 C.F.R §21.2(a)(1), state timeliness requirements for challenging solicitation defects as follows:
(a)(1) Protests based upon alleged improprieties in a solicitation which are apparent prior to bid opening or the time set for receipt of initial proposals shall be filed prior to bid opening or the time set for receipt of initial proposals.
(3) If a timely agency-level protest was previously filed, any subsequent protest to GAO must be filed within 10 days of actual or constructive knowledge of initial adverse agency action
This rule is straight forward and makes sense to most people familiar with bid protests. GAO’s relaxed definition of what it deems to be an agency level protest can catch contractors by surprise as the 10 day clock starts ticking after an “adverse agency action.”
In Coulson Aviation (USA), Inc., B–411525.2, 2015 CPD ¶272, a contractor did not intend to file an agency protest when it sent letters asserting that the procurement should be a FAR Part 12 commercial item purchase. Coulson asserted that these letters “were an attempt to resolve its concerns through ‘frank and open discussions,’ as anticipated under FAR §33.103(b).” Coulson argued its protest was timely because it was filed before the May 26 solicitation deadline.
GAO ruled that the letters amounted to agency-level protests, and agency denial letter on November 10 and the amended RFP not incorporating Coulson’s requested changes amounted to adverse agency actions starting the 10 day clock. GAO states:
[O]ur Office has long held that, to be regarded as a protest, a written statement need not state explicitly that it is or is intended to be a protest, but must convey the intent to protest by a specific expression of dissatisfaction with the agency’s actions and a request for relief. Mackay Commc’ns-Request for Recon., B–238926.2, Apr. 25, 1990, 90–1 CPD ¶426 at 1; Masai Techs. Corp., supra. In contrast, we have explained that a letter that merely expresses a suggestion, hope, or expectation, does not constitute an agency-level protest. Masai Techs. Corp., supra.
In analyzing Coulson’s letters, GAO points out that the letter to the CO “(i)objects to the agency’s decision to conduct a negotiated procurement using FAR Part 15 procedures; (ii) advises that FAR part 12 commercial item procedures were required; and (iii) requested amend the RFP to utilize FAR Part 12. Id. “We will regard a written request for specific relief to be a protest, even if a firm characterizes its document as open and frank discussions under FAR §33.103(b).”
After the Agency amended the RFP, Coulson requested to meet with the agency to discuss its request to amend the RFP. On December 23, the Contracting Officer advised that the “agency would not meet with Coulson, but that ‘Coulson is encouraged to submit their proposal IAW [in accordance with] the terms of the RFP.’”
Coulson filed the GAO protest on May 11, prior to the May 26 proposal deadline. Coulson argued its protest was timely because the agency could have changed its mind, and amended the RFP addressing Coulson’s concerns prior to the proposal due date. GAO saw otherwise ruling:
The agency’s disagreement with Coulson’s position and refusal to amend the solicitation as requested by Coulson constituted adverse agency action. Even assuming that Coulson’s duty to file its protest on this issue with our Office was not triggered until the agency’s final refusal of the protester’s requested relief on December 23, Coulson’s protest was not filed with our Office until May 11, 2015, which is well past the 10 days allowed by our regulations. See 4 C.F.R. §21.2(a)(3) (“If a timely agency-level protest was previously filed, any subsequent protest to GAO filed within 10 days of actual or constructive knowledge of initial adverse agency action will be considered….”). Accordingly, we dismiss this allegation as untimely.
The GAO opinion fails to clearly state which event started the 10 day clock. The language seems to suggest that earlier refusals by the agency may have constituted adverse agency action starting the clock. 4 C.F.R §21.2(a)(3) clearly states that the clock starts running from the “initial adverse agency action.”
Contractors looking to protest a solicitation defect need to review their correspondence with agency personnel and see if any written correspondence could be considered: (i) an expression of dissatisfaction with an agency action/inaction; and (ii) a request for relief. If so, the contractor has 10 days from constructive or actual knowledge of the initial adverse agency action to file a protest at GAO.
If there is any uncertainty it is safer to file at the U.S. Court of Federal Claims (“COFC”) instead of GAO. A protest to the COFC would clearly be timely if filed prior to award. Blue & Gold Fleet, L.P. v. United States, 492 F.3d 1308 (Fed.Cir.2007). After award is problematic since Bannum, Inc. v. United States, 779 F.3d 1376, 1380-81(Fed. Cir. 2015) requires the submission of a formal agency or GAO protest prior to award.