The most common basis to establish timeliness for a Government Accountability Office (GAO) bid protest is found in Section 21.2 of the GAO’s regulations. Under the regulation, the protester must file the protest “not later than 10 days after the basis of protest is known or should have been known”.
Important Disclaimer: There are plenty of other events that can trigger the running of a GAO bid protest filing deadline. Please feel free to reach out to me directly if you need guidance in this area.
In a recent decision, GAO placed a hard emphasis on the “should have known” element of the regulation. The case involved a protest over the Department of Veterans Affairs’ award of a contract for construction services. Among other things, the protest alleged that the agency improperly relied on a Small Business Administration (SBA) Certificate of Competency (COC) finding the awardee responsible for the procurement.
On review, GAO dismissed the entire protest as untimely. Specifically, GAO determined that the clock on the protest started to run when the protester received a letter from the agency stating its award decision (and also indicating reliance on the SBA’s COC). Because the filing was not made within 10 days of that “should have known date,” the window to protest closed.
Of note, GAO specifically rejected the protester’s argument that its time to file a protest should be expanded based on its lack of knowledge concerning the COC program. According to the protester, it did not understand the purpose/process of the program and sought clarification from the agency. Ultimately, it took until several weeks after the agency’s award letter for the protester to gain a sufficient comfort level to file the protest.
The protester’s delay argument failed because the SBA’s COC program is detailed in both the Federal Acquisition Regulation and the SBA’s own regulations – i.e., publicly available sources. Accordingly, GAO found that there was no basis to extend the applicable 10-day deadline for filing.
For federal contractors contemplating a bid protest at GAO – this case demonstrates that the time for contemplation is very short. Any information giving rise to knowledge of a potential protest basis must be treated as potential triggering event. If a stay of award or performance is needed, the time to file could be even shorter (as little as 4 calendar days).
The only option to preserve the important rights vested in the GAO bid protest process is to act fast and stay out in front of these deadlines.
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