Procedurally Non-Protestable Issues (Post-Award Protest Primer #7)

by Morrison & Foerster LLP - Government Contracts Insights
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Before diving into the various protest grounds that may result in a sustained protest at the GAO, let’s look at some sure losers.  These are issues that are not protestable and would likely result in a quick dismissal.  This week, we’ll discuss procedurally defective protests.  Our next post will look at substantive protest grounds that are expressly excluded from review.

Limited Task Order Jurisdiction

Pursuant to the GAO Civilian Task and Delivery Order Protest Authority Act of 2016 and the FY 2017 National Defense Authorization Act, the GAO was granted exclusive and permanent jurisdiction over task- and delivery-order protests for both civilian and Department of Defense (DOD) task orders.  Unlike in past years, however, the dollar threshold for protestable task orders is different for civilian and DOD agencies:  For civilian agencies a task order continues to be protestable only if the task order value exceeds $10 million; for DOD agencies the value must exceed $25 million for the task order to be protestable.  Thus, any task order valued at below $10 million for civilian agencies, or below $25 million for DOD agencies, is not protestable.  Notably, the $25 million threshold does not apply to task orders issued by DOD agencies under civilian-agency umbrella contracts.  See Analytic Strategies LLC, B-413758.2, Nov. 28, 2016, 2016 CPD ¶ 340; HP Enterprise Services, LLC, B-413382.2, Nov. 30, 2016, 2016 CPD ¶ 343.  NASA and the Coast Guard are considered defense agencies for purposes of the $25 million task order threshold.  See 10 U.S.C. § 2303 (listing NASA among the agencies to which the chapter applies); 10 U.S.C. § 2304c (discussing task order protests); NCS Technologies, Inc., B-413500.2, Feb. 14, 2017, 2017 CPD ¶ 123 at 2 n.3 (referencing the $25 million threshold applicable to task orders issued under NASA umbrella contracts after the FY 2017 NDAA).

The GAO measures the contract value for purposes of the threshold at the value of the awarded contract.  See Goldbelt Glacier Health Servs., LLC, 2014 CPD ¶ 281 at 2 (stating that “where an order has in fact been issued by the government, we view the jurisdictional limit to turn on the value of the disputed order, which is reflected in the terms of the order itself”).  Thus, if a task order is awarded at an amount below the threshold amount, the GAO will not hear a protest even if the protester’s offer is above the threshold and technically superior.  In the context of a pre-award protest, the GAO will either look to the values of the remaining offers (if the challenge is to an exclusion from the competitive range) or to the government estimate to determine jurisdiction.

These thresholds (as well as the exclusive nature of the GAO’s jurisdiction) do not apply where the protest alleges that the task order is out of scope of the contract or challenges a Federal Supply Schedule order.  See Analytic Strategies LLC; Gemini Indus., Inc., B-413758.2; B-413758.3, Nov. 28, 2016, 2015 CPD ¶ 334.

Lack of Standing

In all protests, the GAO will also consider whether the protester has standing to challenge the contract award.  The GAO rules dictate that only an “interested party” may file a protest, and defines “interested party” as “an actual or prospective bidder or offeror whose direct economic interest would be affected by the award of a contract or by the failure to award a contract.”  4 C.F.R. 21.0(a)(1).  For practical purposes in post-award protests, therefore, the protest must be filed by an actual bidder or offeror that did not receive a contract award.  This means subcontractors (even substantial subcontractors) or other team members, individual joint venture partners, and mere investors may not file a protest, even if their direct economic interests may be affected by the award of the contract.   Dash Engineering, Inc.; Engineered Fabrics Corporation, B-246304, B-246304.8, B-246304.9, May 4, 1993, 93-1 CPD ¶ 363 (“A prospective subcontractor does not have the requisite interest to be an interested party because it is not a prospective or actual offeror.”); Comark Bldg. Sys., Inc., B-259515, Apr. 10, 1995, 95-1 CPD ¶ 188 at 2 n.1 (stating that a joint venture, not an individual venture partner, is the appropriate “interested party” to protest).

In addition, the GAO has held that a contract awardee does not have standing to challenge additional awards of Indefinite Delivery/Indefinite Quantity (IDIQ) contracts.  See Nat’l Air Cargo Grp., Inc., B-411830.2, Mar. 9, 2016, 2016 CPD ¶ 85 (“where a solicitation contemplates multiple awards, an existing contract awardee is not an interested party to challenge the agency’s decision to award another contract.”).  As we discussed in an earlier post, however, the Court of Federal Claims broke from the GAO in this regard, and found that an awardee may have standing to challenge other firms’ awards in a multiple-award IDIQ procurement.  See Nat’l Air Cargo Grp., Inc. v. United States, 196 Fed. Cl. 281, 297 (2016).

Timeliness

In addition to the timeliness rules discussed in Part 3 of this series, post-award protests generally may not challenge the terms of a solicitation, patent ambiguities in the solicitation, or other solicitation improprieties.  The GAO rules specify that challenges to a solicitation must be filed prior to the date for submission of proposals.  4 C.F.R. 21.2(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.”).  Thus, arguments that the specifications are overly restrictive, that the solicitation does not meet the agency’s actual needs, or that the evaluation methodology is improper will be untimely if they are made after award, and protests on these bases will be dismissed if the alleged impropriety was apparent.

Similarly, an ambiguity that is apparent on the face of the solicitation – i.e., a patent ambiguity – must be challenged pre-award.  Therefore, an argument that an evaluation was flawed because two parts of the solicitation are in conflict will be untimely if filed post-award and will be dismissed.  Instead, post-award protesters may challenge only latent ambiguities, i.e., ambiguities in the Solicitation language (and the parties’ interpretation of that language) that become apparent only after award – for example, as a result of the agency’s disclosure of how it evaluated the protester’s proposal.

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DISCLAIMER: Because of the generality of this update, the information provided herein may not be applicable in all situations and should not be acted upon without specific legal advice based on particular situations.

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