Contractors who have filed or have considered filing a Bid Protest based on a mistake by an agency know that they have very little time to recognize an issue and take action before the Government Accountability Office (GAO).

• Typically, a protest challenging the award of a contract must be filed within 10 days (calendar, not business) of when a protester knows or should know of the basis of the protest.
• GAO routinely dismisses untimely protests without even considering the substance of the appeal.
• Government Agencies will always target timeliness in their brief when it might be an issue.

These facts result in many otherwise worthy Bid Protests being dismissed. While this feels harsh to contractors with legitimate complaints about tight turnaround, it is an integral part of keeping meritorious and timely protests before GAO process quick, inexpensive, and effective overall.

However, there are two important favorable rules GAO has developed over the years that may rescue contractors who might otherwise think they are out of luck due to timeliness concerns.

• Diligent pursuit of information that gives rise to a basis for protest may lead to a favorable decision on timeliness for contractors.
• Doubts over timeliness are resolved in favor of protestors.

These two considerations help somewhat ease the harshness of the strict timeliness rules GAO has.

A recent 2019 GAO case reminds us that “diligent pursuit” of a basis for protest may save a contractor whose Bid Protest otherwise appears untimely.

In Miltrope, the Army argued that the Bid Protest should be dismissed because the contractor knew the basis of its protest after its pre-award debriefing when it was initially excluded from the competitive range. The Army had determined the sample device Miltrope provided did not exceed the minimum specification required.

The contractor argued that its protest was timely because it only realized that it had a basis for protest once the sample device was returned to it and forensic analysis indicated that the settings had been changed. In other words, it only became aware of its basis for protest once it received the device back from the agency. Recall the “knows or should know” aspect of timeliness discussed above.

Those changed settings, which directly affected the test the Army had performed, effectively eliminating Miltrope from the competitive range through no fault of their own.

GAO decided that because the contractor had “sought diligently” to determine the cause of its device’s test failure, and had made this determination within eight days that it would hear the substance of the protest.

I mentioned earlier that GAO resolved doubts over issues of timeliness in favor of protesters. This rule essentially means that if a case is a close-call, tie goes to the protester. Pairing the “diligent pursuit” concept with GAO’s long-standing rule resolving doubts in favor of protesters, can create a circumstance that rescues protests that appear to be untimely.

Before even getting to this stage, contractors should be very aware of all of the potential pitfalls surrounding timeliness even before they begin submitting proposals for government contracts. Being prepared to deal with an unfortunate scenario can make all the difference in whether you have the option of protesting before GAO.

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