If you are a government contractor, chances are that you have been involved in – or at least are familiar with – bid protests. If you are a small business, it’s likely that you are also familiar with size or status protests, as well. But do you understand the difference between these types of protests, and – perhaps more importantly – the different rules relating to when each type of protest can be filed? Determining the filing deadline for a protest can be tricky work, as a recent Small Business Administration (“SBA”) Office of Hearing and Appeals (“OHA”) case demonstrates.
In In the Matter of Fairwater Associates, SBA No. Vet-280 (June 11, 2019), OHA ruled that the SBA had properly dismissed protestor Fairwater Associates’(“Fairwater”) size protest as untimely where the protestor had filed the protest two days after a debriefing, but ten days after it had received notice of an award to L.E. Peabody and Associates. Those of you experienced in bid protests might be wondering how a protest, filed within ten days of the date where a contractor knew or should have known the basis of its protest, and only two days after a debriefing, could be untimely. The key lies in distinguishing bid protests from size and status protests.
By way of background, bid protests are challenges to a contract award, brought by a contractor, in connection with a specific procurement. They challenge the agency’s source selection decision, based on alleged improprieties in the source selection process, such as the failure of agency to comply with applicable law or the terms of solicitation, etc. In most cases, bid protests can be adjudicated before the three possible forums: the procuring agency itself; the Government Accountability Office (“GAO”); or the Court of Federal Claims (“COFC”). These protests can cover issues like unequal treatment of offerors, misapplication of evaluation criteria, use of unstated evaluation criteria, flawed pricing analyses, uneven discussions with offerors, and improper tradeoff analysis, among others. In contrast, size and status protests don’t challenge the agency’s source selection actions or rationale but, rather, the eligibility of the awardee to receive the contract in the first place. These protests are litigated primarily before the SBA (or in some limited cases relating to VOSB/SDVOSBs, the Department of Veterans Affairs (“VA”)). These protests might focus on affiliation concerns, or other eligibility-related issues such as a contractor’s failure to satisfy unconditional ownership and control requirements.
Contractors tend to be most familiar with the GAO’s bid protest rules and procedures – including GAO protest filing deadlines – which is why Fairwater may seem a little confusing. A post-award bid protest to the GAO is considered timely when it is filed within ten days after the basis of protest is known or should have been known. An exception applies to post-award protests challenging a procurement conducted on the basis of competitive proposals under which a debriefing is requested and, when requested, is required; in such a case, the protest must be filed within 10 days of the debriefing. So, why, then, was the protest in Fairview considered untimely when it was filed within two days of the debriefing and ten days of notice of award? Very simply: Because it was not a bid protest; it was a size protest.
Unlike the GAO regulations relating to bid protests, the regulations governing size protests and status protests, as a general matter, require a protestor to file within five business days after learning that an award was, or will be, made to the contractor whose eligibility is in question. If you are dealing with a competitive procurement under FAR Part 15, that means five days from receipt of the Notification to Unsuccessful Offeror. If the agency actually sends it, that is. Otherwise it would be five days from bid opening, or five days from whenever you learn the identity of the (prospective) awardee. If you fail to meet this five-day deadline, your size/status protest is untimely and it will be dismissed. OHA followed this line of reason in concluding that Fairwater’s protest was untimely, and was properly dismissed.
So, as a contractor, what can you learn from this? The key takeaway here is to make sure you know the difference between size, status and bid protests, and that you understand the different timelines and requirements that apply to each. Bid protest timelines and procedures can be tricky to figure out under the best of circumstances. For example, depending on the type of procurement at issue, a debriefing may or may not be required, which means different deadlines may apply. Depending on the agency you are dealing with, you may or may not be able to toll the deadline to file a bid protest while you ask additional debriefing questions. And these permutations are just for post-award bid protests – pre-award bid protests are an entirely different ballgame. With regard to size protests, protests relating to a task order under IDIQ or GWACs may only be possible in limited scenarios. It’s enough to make a contractor’s head spin, isn’t it? What if, further complicating the issue, you think you have a basis for both a bid protest and a size protest on the same procurement? Maybe you think the prospective awardee isn’t eligible but, even if they are, also believe the agency improperly evaluated your proposal and did an improper tradeoff analysis? You could end up having to file a size protest while waiting to get a debriefing on the evaluation issues. Proceeding with a bid protest does not toll the deadline for a size protest, or vice versa. You need to make sure you are tracking all of the applicable deadlines and meeting the requirements for each.