The end of the Fiscal Year is upon us, which typically coincides with a flurry of procurement activity and then a wave of bid protests. As most of you know, there are three primary fora for bid protests: procuring agencies, the Government Accountability Office (GAO), and the Court of Federal Claims (COFC). Although the COFC has relatively lenient timeliness rules, agencies and GAO have short, strict, and fairly draconian timeliness rules for filing protests. So as the protest season approaches, we thought it was a good time to refresh everyone on the rules so you are not disappointed to find that you are too late to file your protest.
There are two general categories of timeliness rules to consider: those impacting challenges to the terms of the solicitation and those for challenges to most other procurement improprieties.[1] Importantly, when assessing protest allegations, one must consider that each allegation must independently satisfy the timeliness rules and this requirement applies both in the context of the initially filed protest and all subsequent supplemental protests.
Challenges to the Terms of the Solicitation
The first category of timeliness rules governs challenges to the terms of a solicitation, and the same rule generally applies in all three fora if the defect is apparent in the original solicitation. To level set, the types of arguments that constitute challenges to the terms of the solicitation are those that allege, for example, that the terms are ambiguous, critical information is missing, or that the agency failed to include certain terms and conditions. For solicitation defects that are clear on the face of the solicitation as initially issued, a protest must be brought prior to the deadline for receipt of initial proposals. FAR 33.103(e) (agency); 4 C.F.R. § 21.2(a)(1) (GAO); Blue & Gold Fleet, L.P. v. United States, 492 F.3d 1308 (Fed. Cir. 2007) (COFC).
What if the Government introduces the defect into the solicitation only after the receipt of initial proposals? The deadline for filing a protest challenging a solicitation amendment actually differs depending on the forum. At GAO, protests based on solicitation defects subsequently introduced into the solicitation must be filed prior to the next closing time for receipt of proposals, or if no closing time is established or no further proposal submissions are expected, then a protest must be filed within 10 calendar days of the amendment. 4 C.F.R. § 21.2(a)(1). By contrast, for agency-level protests, the FAR does not explicitly describe a separate deadline for protesting a solicitation amendment like the GAO protest regulations do. FAR 33.103(e). Thus, such protests fall under the general category for “all other cases” and should be filed no later than 10 calendar days after the amendment or before the next closing date for receipt of proposals, whichever is earlier. Id. Notably, however, there is at least one precedent in which GAO refused to dismiss a subsequent GAO protest as untimely where the protester filed an agency-level protest challenging a solicitation amendment prior to the due date for revised proposals, even though the agency argued the agency-level protest was untimely because it was filed more than 10 days after the solicitation amendment. Knight Point Systems, LLC, B-414802, Sept. 20, 2017, 2017 CPD ¶ 306. At the COFC, protests challenging solicitation amendments must be filed before contract award, assuming there is adequate time in which to do so. COMINT Systems Corp. v. United States, 700 F.3d 1377, 1382-83 (Fed. Cir. 2012). Because the agency could make an award at any time without warning, it is best to file your protest as soon as possible after contract amendment to avoid timeliness issues.
Note, these rules only apply when the defect is patent; in other words, reasonably discernable on the face of the solicitation. For defects that are not so discernable, so-called latent defects, the timeliness rules fall in the second category of timeliness rules discussed below. While there are many protests involving extensive debate over whether an ambiguity is patent or latent, in general, if you find the term of the solicitation to be ambiguous simply by reading the solicitation and/or the agency’s questions and answers, then it is likely a patent ambiguity and you must protest before the due date for proposals. You generally cannot wait to see how the agency actually applies the ambiguous requirement in its evaluation and then protest the agency’s interpretation after the award decision.
Challenges to Everything Else
The second major category of timeliness rules covers a wide ranging set of alleged improprieties, such as challenges to the exclusion from the competitive range, evaluation of proposals, organizational conflicts of interest, conduct of discussions, and latent defects in a solicitation. These timeliness rules are more complex than those governing patent solicitation defects and there is a dichotomy between COFC on the one hand, and agency-level and GAO protests on the other.
The COFC has a six year statute of limitations. 28 U.S.C. § 2501. Notwithstanding the statute of limitations, a protester should not significantly delay filing a protest at the COFC because, for example, the more time that passes from award the less likely a reasonable remedy will be available for a successful protester.[2]
For agency-level and GAO protests, the timeliness rules vary depending on whether a debriefing is required by the FAR and whether the protester wants to take advantage of the Competition in Contracting Act (CICA) automatic stay of contract performance.
When a debriefing is not required, the overall rule is that a protest must be filed within 10 calendar days of the date on which the protester knew or should have known the grounds for protest. FAR 33.103(e) (agency); 4 C.F.R. § 21.2(a)(2) (GAO). A debriefing is typically required when a procurement award is based on “competitive proposals.” 4 C.F.R. § 21.2(a)(2); FAR 15.506; FAR 16.505(b)(6). An example of procurements in which a debriefing is not required are purchases under the GSA Federal Supply Schedule. FAR 8.405-2 (unsuccessful offerors may receive a “brief explanation of the basis for the award decision”). Moreover, irrespective of when an offeror knew or should have known of its protest grounds, if the protester is seeking an automatic stay of performance and a debriefing is not required, then the protest must be filed within 10 calendar days of award. FAR 33.103(f); FAR 33.104(c); 31 U.S.C. § 3553(d); 4 C.F.R. § 21.6. To be clear, the 10 days start from the actual award date, not the date on which the protester is advised of the award – and these dates may differ.
For those procurements where there is a “timely requested” and “required debriefing,” a protest must be filed within 10 calendar days of debriefing to be timely. 4 C.F.R. § 21.2(a)(2). To be “timely requested,” the offeror must request a debriefing in writing within 3 days of notice of award or exclusion from the competition. FAR 15.506. If the protester is seeking an automatic stay, the protest must be filed within 10 calendar days of award or 5 calendar days from the debriefing, whichever is later. FAR 33.103(f); FAR 33.104(c); 31 U.S.C. § 3553(d); 4 C.F.R. § 21.6.
The debriefing date that triggers the start of the protest period is the date the debriefing is “concluded.” See, e.g., K&K Industries, Inc., B-420422, B-420422.2, March 7, 2022, 2002 CPD ¶ 62. For Department of Defense procurements with enhanced debriefings, the protest trigger date starts on the date the agency responds to additional questions timely submitted by the offeror after the initial debriefing. 31 U.S.C. § 3553(d)(4)(B); DFARS 215.506-70. Similar triggers can apply to GSA procurements that adopt its INFORM process (GSAM 515.3703-5) and to other agency procurements as long as they specifically advise the contractor, in writing, that the debriefing remains open pending answers to the contractor’s questions. See New SI, LLC, B-295209, et al., Nov. 22, 2004, 2005 CPD ¶ 71. If an agency seems willing to answer additional questions and/or continue debriefing discussions, you should obtain written confirmation that the debriefing is still open to ensure you have additional time to file a protest.
One further rule of note, if you file a timely agency-level protest and then subsequently decide to file the protest at GAO, then you must do so within 10 calendar days of when you have “actual or constructive knowledge of initial adverse agency action.” 4 C.F.R. § 21.2(a)(3). Initial adverse action is not limited to a written denial of the protest, but is “any action or inaction by an agency that is prejudicial to the position taken in a protest filed with the agency,” including the “opening of bids or receipt of proposals.” 4 C.F.R. § 21.0(e); Brian Meads Capital-BMC15-Westwood of Lisle, LLC., B-420800, et al., Sept. 7, 2022, 2022 CPD ¶ 235. Moreover, as GAO recently affirmed, if a protester files a timely challenge to the terms of the solicitation in an agency-level protest, then it has 10 calendar days from initial adverse agency action in which to file a protest at GAO, “even if the end of the 10-day time period for filing occurs prior to the deadline for receipt of proposals.” Rotair Aerospace Corporation, B-421381; et al.,April 19, 2023, 2023 CPD ¶ 99; see also Science and Technology Corp., B-420216, Jan 3, 2022, 2022 CPD ¶ 1.
As reflected above, the timeliness of a protest depends on the stage of the procurement, the type of allegation, the availability of a debriefing, and the chosen forum. To assist offerors, at the end of this article is a quick summary chart depicting the major protest timeliness rules.
Key from an offeror’s perspective is that typically there is not much time to assess the bases for the protest before a protest must be filed. Thus, it is important to engage counsel early during a procurement process to consider the likelihood of a protest, analyze the issues that may arise, monitor closely awards, timely request debriefings, and expediently assess whether a protest is warranted. This will maximize your opportunity to protect your protest rights and your ability to prepare and submit the most effective protest possible.
See infographic here.
FOOTNOTES
[1] There are special rules for certain types of protests. For example, in order to bring a protest challenge alleging a violation of the Procurement Integrity Act, a protester must first, within fourteen days after the protester first discovers the possible violation, report the information to the agency. 4 C.F.R. § 21.5(d). Small business size status protests are also outside these rules and have their own timeliness requirements. See 13 C.F.R. § 121.1004.
[2] In addition, a prolonged delay will likely inhibit the protester’s ability to obtain Temporary and Preliminary Restraining Orders seeking to preclude performance during the pendency of the protest.
[3] Note that some Agencies have internal rules and supplemental regulations that may differ from those described herein.
