I would like to get your opinion on the following scenario. I believe the GAO protest is not timely, my legal counsel disagrees. If you agree with me, please provide case law if possible. Thanks - a regular contributor today posting at Anon777.

Notice of Award: Feb 27, 2002
Timeliness Cutoff: March 11 (would be 3/9 but it fell on a Saturday)
Agency Protest received: March 11
GAO protest filed by same contractor: March 20 - this was before an agency protest decision was issued.

By Linda Koone on Tuesday, April 02, 2002 - 09:55 am:

As I understand the timeliness rules, a contractor has 10 days to file a GAO protest after being notified of an 'adverse agency action' in response to an agency protest.

An 'adverse agency action' doesn't necessarily translate to a formal written or oral response to the agency protest. So from the sketchy facts presented, it wouldn't appear that the GAO protest is untimely.

On what basis do you consider it to be untimely?

By Anon777 on Tuesday, April 02, 2002 - 10:29 am:

Linda,

I consider it untimely because as of March 20, there had been no agency action "adverse" or otherwise for them to protest on. Since they hadn't protested to GAO as of March 11, I believe their only "timely" recourse with GAO would have to wait until receiving the agency decision and then appealing that. Also, based upon our agency protest procedures, we have to make a "best effort" to respond to the protest in 28 days. If this time frame had been exceeded, and they protested to GAO because we never ruled on their protest, I would consider our failure to rule in a timely manner an "adverse action." However, this was not the case.

By bob antonio on Tuesday, April 02, 2002 - 11:07 am:

Anon777:

Here are the timeliness rules provided by GAO's home page. As you can see, you need to provide additional information.

"Sec. 21.2 Time for filing.

(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. In procurements where proposals are requested, alleged improprieties which do not exist in the initial solicitation but which are subsequently incorporated into the solicitation must be protested not later than the next closing time for receipt of proposals following the incorporation.

(2) Protests other than those covered by paragraph (a)(1) of this section shall be filed not later than 10 days after the basis of protest is known or should have been known (whichever is earlier), with the exception of protests challenging a procurement conducted on the basis of competitive proposals under which a debriefing is requested and, when requested, is required. In such cases, with respect to any protest basis which is known or should have been known either before or as a result of the debriefing, the initial protest shall not be filed before the debriefing date offered to the protester, but shall be filed not later than 10 days after the date on which the debriefing is held.

(3) If a timely agency-level protest was previously filed, any subsequent protest to GAO filed within 10 days of actual or constructive knowledge of initial adverse agency action will be considered, provided the agency-level protest was filed in accordance with paragraphs (a)(1) and (a)(2) of this section, unless the contracting agency imposes a more stringent time for filing, in which case the agency's time for filing will control. In cases where an alleged impropriety in a solicitation is timely protested to a contracting agency, any subsequent protest to GAO will be considered timely if filed within the 10-day period provided by this paragraph, even if filed after bid opening or the closing time for receipt of proposals.

(b) Protests untimely on their face may be dismissed. A protester shall include in its protest all information establishing the timeliness of the protest; a protester will not be permitted to introduce for the first time in a request for reconsideration information necessary to establish that the protest was timely.

(c) GAO, for good cause shown, or where it determines that a protest raises issues significant to the procurement system, may consider an untimely protest."

By anon2 on Tuesday, April 02, 2002 - 11:08 am:

then what you are really saying is that you feel the contractor protested to GAO prematurely?

By Anon777 on Tuesday, April 02, 2002 - 12:27 pm:

anon2 - yes - the contractor is premature in protesting to GAO.

Bob - 21.2(3) applies - but there is no adverse agency action for the contractor to protest. Therefore, I believe that if they wanted to protest directly to GAO, they must have done so in the initial 10 day period. After this 10 day period, the only timely protest to GAO could be after an adverse agency action.

Anon777

By Linda Koone on Tuesday, April 02, 2002 - 12:37 pm:

Anon777:

GAO has dismissed protests because they are premature.

Look at 'Omni Corporation, B-281082, December 22, 1998' and 'IT Corporation, B-288507, September 7, 2001'.

The IT Corp protest decision also references an older decision, 'Saturn Indus.--Recon., B-261954.4, July 19, 1996, 96-2 CPD para. 25 at 5' which I haven't read.

Presuming that your agency has not taken any 'adverse actions', then I would agree that GAO will dismiss the protest as premature.

I have to ask...why isn't this the opinion of your Office of Counsel?

By Anonymous on Tuesday, April 02, 2002 - 01:03 pm:

Q. Is the subject acquisition underway?

By Anon777 on Tuesday, April 02, 2002 - 01:45 pm:

Linda - I believe my legal counsel is misreading the GAO Bid Protest Regs. They believe that if an agency protest is filed on time with the agency, that the protester can then file with GAO, even after the 10 day limit, and even before there is "adverse" agency action.

I am very frustrated with them because what they are saying doesn't make sense to me. For example, using their logic, a protester could file a protest with GAO 35 days after being notified of an award (10 days limit for agency protest and then 25 days after that). Again, using this logic, a contractor could easily extend his time for filing with GAO merely by filing an agency level protest. No where in the GAO Bid Protest Regs does it say that filing an agency protest now extends the time to file with GAO. After the initial 10 day window, the contractor has to wait for adverse agency action.

Because, even after an 1.5 hour conversation regarding this, the lead counsel disagrees, I'm trying to find a case on this exact point.

By Anon777 on Tuesday, April 02, 2002 - 01:50 pm:

Anon 4/2 1:03pm:

The follow-on contract has started. At least I did get them to agree that the a stay was not warranted, because FAR 33.103(f)(4) states, "(4) Pursuing an agency protest does not extend the time for obtaining a stay at GAO. Agencies may include, as part of the agency protest process, a voluntary suspension period when agency protests are denied and the protester subsequently files at GAO."

Anon777

By anon 1-03 on Tuesday, April 02, 2002 - 02:44 pm:

I thought so....I suspect the contractor was trying to preserve his "rights". Arguably the adverse action was that the awardee is performing not that his initial protest has not been adjudicated. By the way...can he win?

By Linda Koone on Tuesday, April 02, 2002 - 03:08 pm:

Anon777:

Are you saying that your agency made the determination to continue performance under the protested contract instead of suspending contract performance? If so, this could potentially be viewed as an 'adverse action' (why would you continue performance if you were going to sustain the protest?).

Is this the argument that your Counsel is making?
If so, I might agree then that the protest is not premature.

By Anon777 on Tuesday, April 02, 2002 - 03:27 pm:

To clarify - when the contractor filed his protest with GAO on 3/20, performance had not started. Performance started on 4/1.

Anon777

By Linda Koone on Tuesday, April 02, 2002 - 03:57 pm:

My advice to you is to call the protester. You might find out that someone at your agency told the protestor what you were up to - or you may be able to persuade the company to withdraw the protest pending the agency response to the agency protest.

I'm a little confused over your 1:45 posting. An agency protest does, in essence, lengthen the time that a protester can protest to the GAO. If a timely agency protest is received, reviewed and then denied a month later, the protester can still protest to GAO if it does so within 10 days of the denial.

I don't agree with your Counsel's opinion that the company can protest to the agency and then subsequently protest to GAO prior to the agency's response to the protest (or some other adverse agency action, such as contract award or authorization of contract performance, that puts the protester on constructive notice that the protest is being denied).

By Anon777 on Tuesday, April 02, 2002 - 04:52 pm:

Linda,

My 1:45 post's intention was to say that after the initial 10 days, a protestor who filed a timely agency level protest could not file a timely GAO until the protested the adverse agency action. In this specific instance, there was no adverse agency action yet, therefore the protestors March 20 filing with GAO would be considered either a) late, or b) premature.

By the way - thanks for your input and time.

Anon777

By Anonymous on Tuesday, April 02, 2002 - 11:51 pm:

If you allowed the follow on contract to start, it appears your agency is planning to deny the agency protest. While the GAO filing may have been premature, getting it dismissed (which GAO may do anyway), so that it has to be refiled after your denial, is only going to add more anymosity and may add additional legal fees to be paid if GAO upholds the protest.

By formerfed on Wednesday, April 03, 2002 - 08:24 am:

Another possible view is that allowing performance of the new contract to begin is an adverse action. If the agency level protest is sustained, construction of a remedy suitable in the protestors' eyes is more difficult by having several weeks of performance underway.

Why not follow Linda's advice and talk to the protestor - find out what's driving their actions?

By Vern Edwards on Friday, April 05, 2002 - 06:08 am:

Anon777:

I suspect that the answer to the question that you have asked depends on the basis of the protest to the GAO. If the basis of the protest is the manner in which you conducted the source selection, then the protest to GAO is untimely, because it was filed on March 20, which is presumably more than 10 days after the protester knew or should have known of the basis for the protest. (I assume that there was no debriefing after Feb. 27. Is that right?) But if the protest is based on "actual or constructive" knowledge of an adverse initial outcome of the agency level protest, then the answer depends on when the protester knew or should have known about that outcome. I don't think that the protester has to wait until it actually receives the agency's decision to file the protest, if it has learned in some way that the agency is going to deny the protest. That's how I interpret the "constructive" knowledge rule.

I suppose that if the protester doesn't know about the agency decision, but has merely gotten tired of waiting for it, the GAO may dismiss the protest as premature. But you never know. The GAO may accept it if it thinks that the agency has taken too long to decide.