New
Our Bid Protest Regulations
provide that we will not consider a protest challenging a
procurement conducted on the basis of competitive
proposals, where a debriefing is required if the protest
is filed before the debriefing date offered to the
protester; the protest instead should be filed not later
than 10 days after the debriefing. 4 C.F.R. § 21.2(a)(2).
This rule is designed to encourage early and meaningful
debriefings and to preclude strategic or defensive
protests. Real Estate Ctr., B‑274081, Aug. 20, 1996, 96‑2
CPD ¶ 74.
The protest states that Celeris’s debriefing began on
September 24, 2018. Celeris then submitted questions to
the Navy on September 26, but it then filed this protest
with our Office on September 28. Protest at 1-2. The Navy
states that, as of approximately 1 p.m. on October 2, when
it filed the dismissal request seeking dismissal of the
protest as premature, it had not yet provided answers to
those questions. Dismissal Request at 1.
Celeris appears to argue that the extended debriefing was
then completed. Additionally, Celeris argues that the
protest should not be dismissed because the incomplete
debriefing involves the extended debriefing procedures of
10 U.S.C. § 2305(b)(5)(B)(vii)-(b)(5)(C). In particular,
the protester argues that the Navy was statutorily
directed to respond to Celeris’s questions by October 2,
and that the agency’s obligation to answer questions
should not delay a firm’s ability to file a protest, to
meet the timing requirements of 31 U.S.C. § 3553, or to
obtain a stay of performance within the statutory time.
In the context of the extended debriefing procedures, we
consider a protest to be premature until the conclusion of
the entire debriefing process, so as in other
circumstances, we will also dismiss a protest filed before
completion of the extended debriefing process, and we will
recognize one filed afterward as timely so long as it is
filed within the timeliness requirements. The potential
effect on an agency’s ability to commence or continue
performance of the awarded contract (or task order, as
here) during the extended debriefing process (or from the
protester’s perspective, its entitlement to a stay of
performance), must be considered secondary to the policy
interests identified above, which require the dismissal of
a protest filed before the completion of a debriefing.
(Celeris Systems, Inc
B-416890: Oct 11, 2018)
On June 19, HUD posted
justification and approval document on fbo.gov, which
identified 41 U.S.C. § 3304(a)(2) and Federal Acquisition
Regulation § 6.302-2 as the legal basis for a class
justification and approval to enter into a contract with
PKMG on a sole-source basis for $18 million for 12 months
of services. The justification document cited unusual and
compelling urgency that had arisen from the agency's
decision not to exercise an option to extend the incumbent
contract, which therefore ended on May 31. The
justification identified HUD's need to provide continuous
FSM services, so that approximately 500 HUD-owned
properties in the affected states could be marketed,
preserved and protected, and so that the risk of adverse
occupants, vandals, and thieves could be managed.
On Friday, June 29, at 5:29 p.m., Eastern Time, (or
approximately 1 minute before the closing time for
submission of protests that day), counsel for CWIS
attempted to file this protest using [electronic
protest docketing system] EPDS. The attempt was
unsuccessful, and resulted in counsel receiving an error
message.
At 5:31 p.m., Eastern Time, after our Office had closed
for filings, counsel for CWIS contacted our Office by
email, to advise that the attempt to file to protest using
EPDS had been unsuccessful. At 5:46 p.m., Eastern Time,
counsel submitted the protest by email to the GAO protest
inbox.
Upon reviewing the protest, our Office noted that the
protest stated that the sole-source notice had been posted
publicly on June 18. Our Office asked counsel for CWIS to
explain how the protest was timely, particularly because
the protest was dated June 29. Counsel for CWIS responded
that the June 18 date listed in the protest was a
typographical error, and that HUD actually posted the
sole-source notice on June 19. Nevertheless, under our
Office's Bid Protest Regulations, as amended, CWIS
submitted its protest to GAO on June 29 at 5:46 p.m.,
Eastern Time, which did not constitute a "filing" until
the morning of July 2. See 83 Fed. Reg. at 13823 (amending
4 C.F.R. § 21.0(g) to provide that a document is "filed"
when it is received in EPDS by 5:30 p.m., Eastern Time).
The July 2 protest filing was thus more than 10 days after
HUD posted the notice of the basis for awarding the
sole-source contract to PKMG.
Our Bid Protest Regulations reflect the dual requirements
of giving parties a fair opportunity to present their
cases and resolving protests expeditiously without unduly
disrupting or delaying the procurement process. Verizon
Wireless, B-406854, B-406854.2, Sept. 17, 2012, 2012 CPD ¶
260 at 4. Here, CWIS knew or should have known of its
basis of protest on June 19, when HUD posted its
justification documents for the sole-source contract award
to PKMG. However, the protest was not filed until July 2,
making it untimely.
The protest is dismissed. (CWIS,
LLC B-416544: Jul 12, 2018)
The
Corps filed a request for dismissal of the protest on the
basis that the protest is untimely. Specifically, the
agency argues that the debriefing concluded following the
agency's June 1 response to the protester's initial
debriefing questions, and therefore, to be timely pursuant
to the Enhanced Debriefing Rights, any protest to our
Office had to have been filed by the close of business on
June 6. In this regard, the agency asserts that the
Enhanced Debriefing Rights establishes that "timely
protests must be submitted to the Government
Accountability Office not later than 'Five days after the
Government delivers its written response to additional
questions submitted by the unsuccessful offeror. . . .'"
Request for Dismissal at 5. In opposition, SWC argues that
its protest was timely filed within 5 days of the agency's
June 20 response to its second set of debriefing
questions. We agree with the agency that the time period
for SWC to file its protest began to run on June 1 when
the agency responded to the protester's initial debriefing
questions and advised the protester that the debriefing
had closed. Therefore, SWC's June 24 protest is untimely.
However, for the reasons discussed herein, we disagree
with the agency's contention that the protester had only a
5-day window within which to file its protest.
Our Bid Protest Regulations contain strict rules for the
timely submission of protests. Under these rules, a
protest based on other than alleged improprieties in a
solicitation must be filed not later than 10 calendar days
after the protester knew, or should have known, of the
basis for protest, with an exception for protests that
challenge a procurement conducted on the basis of
competitive proposals under which a debriefing is
requested and, when requested is required. 4 C.F.R. §
21.2(a)(2). In such cases, protests must be filed not
later than 10 days after the date on which the debriefing
is held. Id.
As an initial matter, SWC does not contend that its
protest is based on new information learned from the
agency's June 20 response to its second set of debriefing
questions. Thus, the only question for consideration is
whether the debriefing reasonably remained open following
the agency's June 1 response to the protester's first set
of debriefing questions. Under the circumstances here, we
conclude that the debriefing concluded on June 1.
Notwithstanding the Corps' voluntary responses to the
protester's second round of additional debriefing
questions, the agency's unequivocal direction that "[t]he
debrief is hereby concluded" at the conclusion of its June
1 response to the protester's initial set of debriefing
questions was unambiguous as to the status of the
debriefing. We have recognized that the fact that a
protester may not have been satisfied with all aspects of
a debriefing, and that it continues to pursue certain
questions with the agency, does not extend the time for
filing a bid protest based on the information provided
during the debriefing. Zafer Constr. Co.; Kolin Constr.,
Tourism, Industry and Trading Co. Inc., B-295903,
B-295903.2, May 9, 2005, 2005 CPD ¶ 87 at 5-6; New SI,
LLC, B-295209 et al., Nov. 22, 2004, 2005 CPD ¶ 71 at 3;
Handheld Sys., Inc., B-288036, Aug. 10, 2001, 2001 CPD ¶
142 at 2. Furthermore, we find no support in FAR §
15.506(d) or in the Enhanced Debriefing Rights for the
proposition that an offeror is entitled to multiple rounds
of postaward debriefing questions.
While we agree with the agency that the debriefing at
issue closed on June 1, and that SWC's protest to our
Office filed on June 24 was untimely, as noted above, we
disagree with the agency's contention that the protester
was required to file its protest by June 6, within 5 days
of the conclusion of the enhanced debriefing. As set forth
above, our timeliness rules contemplate that a protest
following a requested, and when requested, required
debriefing must be filed within 10 days of when the
debriefing was held. 4 C.F.R. § 21.2(a)(2). The agency
appears to view the Enhanced Debriefing Rules as having
modified our timeliness rules with respect to debriefings
such that following an enhanced debriefing, the timeliness
period is reduced from 10 days to 5. The agency is
mistaken in this regard.
The Enhanced Debriefing Rules, and the underlying
statutory basis for them, do not in any way alter or
impact the timeliness rules established by our Bid Protest
Regulations. Rather, the Enhanced Debriefing Rules, and
the underlying statutory changes to the Competition in
Contracting Act, relate solely to the agency's obligations
with respect to complying with the mandatory stay of
contract performance or termination of the awarded
contract upon the filing of a protest with our Office. See
31 U.S.C. § 3553(d)(4); Enhanced Debriefing Rules at 1. In
this regard, the Enhanced Debriefing Rights specify that
if an unsuccessful offeror submits additional debriefing
questions, the agency shall comply with the requirements
of FAR § 33.104(c) regarding the suspension of contract
performance or termination of the awarded contract upon
the receipt of a protest filed by the unsuccessful offeror
with GAO within five days after the government delivers
its written response to the unsuccessful offeror's
additional questions. Enhanced Debriefing Rules at 1.
Accordingly, the agency's reliance on the Enhanced
Debriefing Rules for the purpose of establishing the
timeliness of SWC's protest was in error.
The protest is dismissed. (State
Women Corporation B-416510: Jul 12, 2018)
IR
Tech argues that the agency failed to revise the RFP to
reflect its changed requirement and that the agency
unreasonably evaluated proposals. As explained below, we
find that the first argument, challenging the terms of the
solicitation, are untimely, and that the latter arguments,
challenging the agency's evaluation of proposals, have
either been abandoned or concern the adequacy and conduct
of debriefing that do not involve the validity of the
contract award.
Asserting that the agency's requirements for STRATIS and
Air Fortress have changed, the protester primarily argues
that the agency was required to amend the solicitation to
reflect this change. In this regard, the protester
contends that exchanges with agency personnel and agency
documents indicate that the agency intends to retire
STRATIS and Air Fortress during the first year of
performance. See Protest at 5. The protester further
argues that the retirement of STRATIS and Air Fortress
less than one year into a five year program results in a
contract materially different from this solicitation's
terms; and that, instead of amending the RFP to reflect
its changed needs, the agency made an award with the
apparent intention of issuing changes later. Protest at
11-12.
While maintaining that STRATIS and Air Fortress remain
valid requirements, the agency requests that our Office
dismiss this protest ground as untimely. See AR, COS/MOL
at 6-11; see also Agency Request for Dismissal at 2-5. In
this regard, the agency argues that the protester
effectively submitted an agency-level protest on November
28, 2017, expressing its belief that the agency's
requirements had changed and requesting that the agency
amend the solicitation. See AR, COS/MOL at 10-11. The
agency further asserts that at the very latest, the
protester knew by the date of award, February 16, 2018, of
the agency's adverse decision, i.e., its decision not to
amend the solicitation. Id. at 11. As a result, the agency
argues that the protester's March 4 protest, which was
filed more than 10 days after the protester knew or should
have known of the basis of protest, is untimely. Id.
Our Bid Protest Regulations contain strict rules for the
timely submission of protests. Where a protest first has
been filed with a contracting activity, any subsequent
protest to our Office, to be considered timely, must be
filed within 10 calendar days of "actual or constructive
knowledge of initial adverse agency action." 4 C.F.R. §
21.2(a)(3). The term "adverse agency action" means any
action or inaction on the part of a contracting agency
that is prejudicial to the position taken in a protest
filed there. 4 C.F.R. § 21.0(e). Timeliness is thus
measured from when the protester is on notice that the
contracting activity will not undertake the requested
corrective action rather than from the receipt of a
subsequent formal denial of the agency-level protest. See
Scopus Optical Indus., B-238541, Feb. 23, 1990, 90-1 CPD ¶
221. In this respect, our timeliness rules reflect the
dual requirements of giving parties a fair opportunity to
present their cases and resolving protests expeditiously
without unduly disrupting or delaying the procurement
process. Dominion Aviation, Inc.--Recon., B-275419.4, Feb.
24, 1998, 98-1 CPD ¶ 62 at 3.
In its comments, the protester argues that its November
28, 2017 letter was not an agency-level protest. See
Protester's Comments at 17. In this regard, the protester
argues that its letter did not express dissatisfaction
with a prior agency action nor did it request a ruling by
the agency. Id. The protester further argues that the
debriefing exception should apply because the agency
withheld information critical to raising IR Tech's protest
ground, and it diligently pursued information about the
potential changed requirements. Id. at 17-18.
Our Office has consistently explained that, to be regarded
as a protest, a written statement need not state
explicitly that it is, or is intended to be, a protest,
but must convey the intent to protest by a specific
expression of dissatisfaction with the agency's actions
and a request for relief. See, e.g., Western Star Hosp.
Auth., Inc., B-414198.2, B-414198.3, June 7, 2017, 2017
CPD ¶183 at 6; Masai Techs. Corp., B-400106, May 27, 2008,
2008 CPD ¶ 100 at 3; ILC Dover, Inc., B-244389, Aug. 22,
1991, 91-2 CPD ¶ 188 at 2. In contrast, we have explained
that a letter that merely expresses a suggestion, hope, or
expectation, does not constitute an agency-level protest.
Id.
On this record, we agree with the agency that the
protester's November 28 letter to the contracting officer
was an agency-level protest. Here, the protester expressed
its dissatisfaction with the solicitation's inclusion of
the STRATIS and Air Fortress requirements in the
solicitation, in light of its discovery that those
requirements would be retired during the first year of the
contract. See AR, Tab 10, IR Tech Nov. 28 Letter to CO at
1 ("It makes no sense for a contractor to expend money to
reduce STRATIS and Air Fortress operating costs if they
are to be discontinued. The retirement of [these systems]
one year into a five year program results in a contract
materially different than that solicited."). The protester
also specifically "request[ed] that the Marine Corps amend
the solicitation to reflect its changed needs." Id. at 2.
While the November 28 letter did not explicitly state that
it was a protest, it clearly conveyed the intent to
protest by a specific expression of dissatisfaction with
the agency's action and a request for relief.
We therefore agree with the agency that the protester's
March 4, 2018 protest to our Office was untimely. In this
regard, on November 30, 2017, the agency responded to IR
Tech's November 28 letter, informing the protester that
the agency would not be able to discuss the issues raised
in its letter because it was related to a solicitation
that is currently in the evaluation process. AR, Tab 11,
CO Nov. 30 Response to IR Tech. On February 14, 2018, the
protester was notified that Tactical Edge was the apparent
successful offeror and that an award would be forthcoming.
See AR, Tab 13, Intended Awardee Letter. This letter
placed the protester on notice that the agency would not
undertake the requested corrective action, i.e., amend the
solicitation. Accordingly, the protester's March 4
protest, which was filed more than 10 days after the
protester knew or should have known of the basis of
protest, is untimely. Id.
The protester argues, however, that the debriefing
exception to our timeliness rules should apply here. We
disagree. The basis for the protester's complaint that the
solicitation did not accurately reflect the agency's
changed requirements is the allegation of an impropriety
in the solicitation. The debriefing exception as set forth
in our Bid Protest Regulations specifically states that it
does not apply to any protest basis that "involve[s] an
alleged solicitation impropriety covered by [4 C.F.R. §
21.2(a)(1)]." 4 C.F.R. § 21.2(a)(2). Accordingly, this
exception is not applicable here. (Impact
Resources, Inc. B-416093: Jun 11, 2018)
Upon receipt of PennaGroup's protests, our Office prepared
and distributed development letters to the parties. The
development letters stated that the due date for the
agency to file its reports in response to the protests was
July 26, and further advised that PennaGroup was "required
to submit written comments in response to the report."
Development Letter from GAO to Protester, June 29, 2017.
The development letter further expressly stated "[w]ritten
comments must be received in our Office within 10 calendar
days of your receipt of the report--otherwise, we will
dismiss your protest." Id. (emphasis in original).
DHS filed its agency reports on July 26, and PennaGroup
specifically acknowledged its receipt of the reports on
that day. E-mail from Protester to Agency, July 26, 2017
(3:44 p.m.); E-mail from Protester to Agency, July 26,
2017 (3:45 p.m.). PennaGroup's comments were therefore due
by the close of business on August 7; however, the firm
did not file comments or request an extension of time to
file comments by close of business that day. On August 8,
our Office asked PennaGroup to confirm whether it had
filed comments; in response, the protester stated that "[o]ur
legal team has reviewed the [agency's] response and finds
no new legal or factual arguments not fully set forth in
length in our original Bid Protest." E-mail from Protester
to GAO, Aug. 8, 2017 (10:43 a.m.); E-mail from Protester
to GAO, Aug. 8, 2017 (10:46 a.m.).
On August 9, the agency filed requests for dismissal of
the protests citing PennaGroup's failure to file comments.
In response, PennaGroup acknowledged that its comments
were not timely filed, but stated that it would have filed
its comments by the deadline but for technical
difficulties (i.e., internet service disruption) resulting
from inclement weather. E-mail from Protester to GAO, Aug.
9, 2017 (2:10 p.m.); E-mail from Protester to GAO, Aug. 9,
2017 (2:11 p.m.). The protester also states that it
attempted to reach the GAO attorneys assigned to the
protests regarding the late filing of comments.[2] Id.
Bid protests are serious matters which require effective
and equitable procedural standards to assure both that
parties will have a fair opportunity to present their
cases, and that protests can be resolved in a reasonably
speedy manner. Reynolds Bros. Lumber and Logging
Co.--Recon., B-234740.2, May 16, 1989, 89-1 CPD ¶ 468 at
2-3. The filing deadlines in our Regulations are
prescribed under the authority of the Competition in
Contracting Act of 1984; their purpose is to enable our
Office to comply with the statute's mandate that we
resolve protests expeditiously. See 31 U.S.C. § 3554(a);
Keymiaee Aero-Tech, Inc., B-274803.2, Dec. 20, 1996, 97-1
CPD ¶ 153 at 1. A protester is required to file comments
on an agency's report responding to the protest. 4 C.F.R.
§ 21.3(i). To avoid delay in the resolution of protests,
our Bid Protest Regulations provide that a protester's
failure to file comments within 10 calendar days "shall"
result in dismissal of the protest except where GAO has
granted an extension or has established a shorter period.
Id. § 21.3(i). But for this provision, a protester could
idly await receipt of the report for an indefinite time,
to the detriment of the protest system and our ability to
resolve the protest expeditiously. Prio-Leau Culinary
Servs., Inc.--Recon., B-236373.6, Jan. 23, 1990, 90-1 CPD
¶ 90 at 2. Accordingly, we dismiss PennaGroup's protests
because it failed to file comments by August 7, the due
date for its comments on the agency report.
To the extent PennaGroup now requests that this Office
provide an extension of time for it to file comments, we
note that our Bid Protest Regulations do not allow for
post-deadline extensions. As noted above, a protest will
be dismissed unless our Office granted an extension prior
to the deadline. 4 C.F.R. § 21.3(i). In this case, our
Office did not grant an extension prior to the close of
business on August 7, and therefore, we cannot provide
PennaGroup with more time to file its comments, even if it
experienced technical difficulties. Since PennaGroup had
an opportunity to file its comments, as well as an
opportunity to request an extension of time to file its
comments, allowing PennaGroup to file its comments late
would be inconsistent with our purpose of providing a fair
opportunity for protesters to have their protests
considered without unduly disrupting the procurement
process. (PennaGroup, LLC
B-414840.2, B-414841.2: Aug 25, 2017)
As a preliminary matter, the agency and intervenor argue
that IRT’s protest regarding the price realism evaluation
of MetroStar is untimely because it was not filed within
10 days of when IRT knew of should have known of its basis
of protest (i.e., the award notice provided to IRT) and
because the debriefing exception to our timeliness rules
is inapplicable to, as here, FSS procurements. As detailed
below, we agree.
Our Bid Protest Regulations contain strict rules for the
timely submission of protests. These timeliness rules
reflect the dual requirements of giving parties a fair
opportunity to present their cases and resolving protests
expeditiously without disrupting or delaying the
procurement process. The MIL Corp., B-297508, B-297508.2,
Jan. 26, 2006, 2006 CPD ¶ 34 at 5; Dominion Aviation,
Inc.--Recon., B-275419.4, Feb. 24, 1998, 98-1 CPD ¶ 62 at
3. As relevant here, our Bid Protest Regulations require
that protests not based upon alleged improprieties in a
solicitation:
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 ground 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.
4 C.F.R. § 21.2(a)(2).
Our Office has also previously determined that FSS
procurements conducted pursuant to FAR subpart 8.4 are not
procurements conducted on the basis of competitive
proposals, and that the debriefing exception to our
timeliness rules does not apply to such procurements. The
MIL Corp., supra, at 6; see Comfort Inn South, B-270819.2,
May 14, 1996, 96-1 CPD ¶ 225 (equating the term
“competitive proposals” as set forth in 10 U.S.C. §
2304(a)(2)(B) with negotiated procedures); see also
Systems Plus, Inc. v. United States, 68 Fed. Cl. 206,
209-210 (2005) (holding that a procurement under the FSS
program pursuant to FAR Subpart 8.4 was not conducted on
the basis of “competitive proposals,” even though it may
involve the use of enhanced competitive procedures).
Because the FSS buy here was not a procurement conducted
on the basis of competitive proposals, the exception to
our timeliness rules allowing protests to be filed within
10 days of a debriefing does not apply.
In its response to the request for dismissal, IRT argues
that its protest was timely filed because it could not
have known the basis of its price realism protest
allegation until receiving the March 1 responses to
debriefing questions, and properly filed its protest
within 10 calendar days of that time. We disagree. As set
forth above, IRT’s protest here is based on a comparative
assessment of MetroStar’s price to its own--information
which IRT knew from the award notice. The record also
reflects that IRT’s discussion questions and USMC’s
answers thereto contained no reference to price
realism--including the specific questions and answers to
which IRT first refers in its response to the dismissal
request. AR, Tab 16, Agency Debriefing Answers, at 3-4. In
sum, IRT’s assertion that the agency failed to properly
evaluate MetroStar’s unrealistic price was based on
information IRT knew of prior to its debriefing, and did
not file its protest within the required time.
IRT also argues that its price realism evaluation
challenge is timely because the USMC conducted the
procurement here pursuant to FAR Part 15. In support
thereof, the protester asserts the following: (1) nowhere
does the solicitation mention FAR subpart 8.4; (2) the
agency made award on an LPTA basis, which is described in
FAR Part 15; and (3) the agency stated that it was
providing IRT with a debriefing “pursuant to Federal
Acquisition Regulation [§] 15.506(b).” IRT Dismissal
Request Response, at 2, citing AR, Tab 14, IRT Post-Award
Debriefing. We disagree.
First, there is no dispute that the ELS2 support services
procurement here was restricted to FSS Schedule No. 70
contract holders, and that the procedures set forth in FAR
subpart 8.4 apply to “individual orders for supplies or
services placed against [FSS] contracts.” FAR §
8.403(a)(1). Likewise, FAR Part 15 “do[es] not apply to .
. . orders placed against Federal Supply Schedule
contracts . . . .” FAR § 8.404(a). There is simply no
requirement that FAR subpart 8.4 be expressly referenced
in a solicitation for it to be applicable to FSS orders.
See FAR § 8.403. The solicitation also properly included
the evaluation criteria on which task order selection
would be made, see FAR § 8.405-2(c)(3)(ii), and the fact
that the LPTA source selection process is detailed in FAR
Part 15 does not alter that this was an FSS procurement.
Lastly, a contracting officer’s mischaracterization is not
determinative of whether a debriefing is a required one,
see MIL Corp., supra, at 7 n.5, nor can it alter the fact
that this was an FSS procurement to which the procedures
of FAR subpart 8.4, rather than FAR Part 15, applied. See
generally Source Diversified, Inc., B-403437.2, Dec. 16,
2010, 2010 CPD ¶ 297 at 5 n.8. (IR
Technologies B-414430, B-414430.2, B-414430.3: Jun 6,
2017)
As a preliminary matter, however, the agency challenges
the timeliness of Medfinity’s protest since the protest
was filed more than two months after the agency announced
its intention to cancel the solicitation. We decline to
dismiss the protest on these grounds. In this regard, the
record evidences that on May 13, Medfinity sent an email
to the CO disagreeing with the agency’s cancellation
decision and requesting an independent third party review.
See AR, Tab 17, Medfinity Email Chain, at 2-5. Our Office
has long held that, to be regarded as an agency-level
protest, a written statement need not state explicitly
that it is, or is intended to be, a protest, but rather
must convey the intent to protest by a specific expression
of dissatisfaction with the agency’s actions and a request
for relief. Coulson Aviation (USA), Inc., B-411525,
B-411525.2, Aug. 14, 2015, 2015 CPD ¶ 272 at 5. Because
Medfinity’s May 13 email included both a specific
expression of dissatisfaction and a request for corrective
action, we find that it constituted an agency-level
protest. Since Medfinity filed the instant protest with
our Office within ten days of learning, on July 18, that
the agency still intended to cancel the solicitation, its
protest is timely under our Bid Protest Regulations. 4
C.F.R. § 21.2(a)(3). (Medfinity
LLC B-413450: Sep 9, 2016)
Choctaw argues that, despite the language of the
solicitation expressly providing that past performance of
the offeror would be viewed more favorably than past
performance by a predecessor company, Federal Acquisition
Regulation (FAR) § 15.305(a)(2)(iii) prohibited the Air
Force from viewing past performance in the manner set out
by the solicitation. Protest at 3; Protester’s Comments at
2-3.
In response, the Air Force notes that the RFP specifically
provided that “[c]ontracts performed by the company
submitting the proposal are viewed more favorably than
those performed by predecessor companies and/or key
personnel,” RFP at 28, and points out that the firm’s only
past performance was by its predecessor, Choctaw
Professional Resource Enterprise. AR at 4. Accordingly,
the Air Force argues, Choctaw is raising an untimely
challenge to the express terms of the RFP, and should be
dismissed on that basis. Id. Even if the protest were
timely in this regard, the Air Force argues, the
evaluation was reasonable because FAR § 15.305(a)(2)(iii)
merely advises an agency to “take into account” the past
performance by predecessors and key personnel, and does
require an agency to give it the same status as past
performance of the offeror itself. Id. at 5-6.
We agree with the Air Force. The solicitation here
expressly disclosed how the Air Force would view past
performance by the offeror versus the past performance of
a predecessor firm. An argument that this solicitation
language violates the FAR is a challenge to the terms of
the solicitation and is, thus, untimely. See Liebert Fed.
Sys., Inc., B-274823, Jan. 8, 1997, 97-1 CPD ¶ 45 at 9
(untimely post-award challenge that price evaluation using
estimates provided in solicitation was unreasonable); Blue
Rock Structures, Inc., B-287960.2, B-287960.3, Oct. 10,
2001, 2001 CPD ¶ 184 at 5 n.5 (untimely post-award
challenge that past performance evaluation scheme was
disadvantageous to protester). To be timely, a challenge
to the terms of a solicitation must be filed before the
closing date for the submission of proposals. 4 C.F.R. §
21.2(a)(1); e.g., Logistics Mgmt. Int’l, Inc., B-412837,
June 6, 2016, 2016 CPD ¶ ___ at 3-4 (timely pre-proposal
protest of solicitation provision that past performance of
key personnel would not be considered relevant). Choctaw’s
protest was filed after award, making it untimely.
In its comments, Choctaw argues that its protest should
nevertheless be considered under the significant issue and
good cause exceptions to timeliness. Protester’s Comments
at 1. The good cause exception to GAO’s timeliness rules
is limited to circumstances where some compelling reason
beyond the protester’s control prevents the protester from
filing a timely protest, while the significant issue
exception is limited to untimely protests that raise
issues of widespread interest to the procurement
community, and which have not been considered on the
merits in a prior decision. Baldt Inc., B‑402596.3, June
10, 2010, 2010 CPD ¶ 139 at 2-3. Choctaw has shown no
reason why it could not have challenged the terms of the
solicitation before the award, nor has it demonstrated the
presence of a significant issue; indeed, as cited above,
our Office has addressed FAR § 15.305(a)(2)(iii) in
previous decisions. (Choctaw
Staffing Solutions, Inc. B-412152.3: Aug 24, 2016)
Suntek challenges the SBA’s determination that the
requirement is exempt from an adverse impact analysis
because it is a “new” requirement. The Army and SBA
respond that the protest is untimely because Suntek filed
its protest more than 10 days after it should have known
of SBA’s acceptance of the requirement into the 8(a)
program. In this regard, the agencies assert that Suntek
knew, or should have known, that SBA had accepted the
requirement into the 8(a) program, when it received a copy
of the solicitation. Suntek disagrees, arguing that it did
not know that the requirement had actually been offered
and accepted into the 8(a) program, until it learned that
the contract had been awarded. For the reasons discussed
below, we conclude that the protest was untimely filed
with our Office, and dismiss it on that basis.
GAO’s Bid Protest Regulations contain strict rules for the
timely submission of protests. Under these rules, a
protest based on other than alleged improprieties in a
solicitation must be filed no later than 10 calendar days
after the protester knew, or should have known, of the
basis for protest, whichever is earlier. 4 C.F.R. §
21.2(a)(2). Our timeliness rules reflect the dual
requirements of giving parties a fair opportunity to
present their cases and resolving protests expeditiously
without unduly disrupting or delaying the procurement
process. Verizon Wireless, B‑406854, B 406854.2, Sept. 17,
2012, 2012 CPD ¶ 260 at 4. Although Suntek’s protest is
based upon information contained in the solicitation, we
note that the timeliness of the protest is governed by
section 21.2(a)(2) of our regulations, which requires that
a protest be filed within 10 days after the basis of
protest is known or should have been known, rather than
section 21.2(a)(1), which concerns alleged improprieties
in a solicitation and requires that a protest be filed
prior to the time set for receipt of initial proposals,
because as previously discussed, Suntek did not receive
the RFP until after the closing date for receipt of
initial proposals. AR, Tab 14, Protester Email Chain
(Sept. 14-17, 2015), at 2; RFP at 1. In this regard, this
case is similar to cases where a solicitation defect only
became apparent after the closing date for receipt of
proposals, and we held that the alleged impropriety had to
be protested not later than 10 days after the defect
became apparent. See Armorworks Enters., LLC, B-400394,
B-400394.2, Sept. 23, 2008, 2008 CPD ¶ 176 at 6; LBM,
Inc., B-290682, Sept. 18, 2002, 2002 CPD ¶ 157 at 6-7.
Here, we find that Suntek’s arguments are untimely and not
for consideration. As mentioned above, the Army issued the
RFP on September 11, with a closing date for receipt of
proposals of September 18. RFP at 1. Although the agency
advised Suntek on September 18 of its decision to use the
8(a) program for the requirement, Suntek did not receive a
copy of the RFP on the date it was issued because the
solicitation was not publicly posted. AR, Tab 14,
Protester Email Chain (Sept. 14‑17, 2015), at 2. On
September 22, however, after the solicitation’s closing
date, and upon Suntek’s request, the Army provided Suntek
with the RFP, which identified the requirement as an 8(a)
directed award. AR, Tab 14, Protester Email Chain (Sept.
14‑17, 2015), at 2; RFP at 64. Although the protester
asserts that it did not know, based on the terms of the
solicitation, whether the requirement had actually been
offered and accepted into the 8(a) program, we note that,
under SBA’s regulations, an agency cannot conduct an 8(a)
competition prior to SBA’s acceptance of the procurement
into the 8(a) program. 13. C.F.R. § 124.504(b).
The SBA, which provided comments to our Office in response
to the protest, explains that “[i]f [it] had not yet
accepted the procurement, the Army would have been barred
by § 124.504(b) from issuing a solicitation and accepting
offers for the contract as an 8(a) procurement.” SBA’s
Comments (Nov. 16, 2015), at 2. The SBA also states that,
“[b]ecause Suntek received a copy of the solicitation
after offers were due, Suntek should have known that SBA
had already accepted the procurement into the 8(a)
program.” Id.
Suntek contends that its arguments arise from the date of
contract award, and therefore argues that its obligation
to protest did not rise until that date. We conclude,
based on the regulatory provisions cited by the SBA,
above, that the protester knew or should have known that
the SBA had accepted the requirement into the 8(a) program
based on the terms of the solicitation, which the
protester received on September 22. Cf. Solers, Inc.,
B-404032.3, 404032.4, Apr. 6, 2011, 2011 CPD ¶ 83 at 8 n.8
(a protester may presume that an agency will act properly
in following regulations). Suntek, however, did not file
its protest until October 5--which was 13 days after it
received the solicitation from the agency. Accordingly,
any protest challenging the offer and acceptance of this
requirement into the 8(a) program, or the SBA’s
determination that the requirement is exempt from an
adverse impact analysis because it is a “new” requirement,
is untimely because Suntek filed its protest more than 10
days after it knew, or should have known of SBA’s
acceptance of the requirement into the 8(a) program. 4
C.F.R. § 21.2(a)(2).
The protest is dismissed. (Suntek
Systems, Inc. B-412265: Dec 22, 2015) (pdf)
Eastern Forestry asserts that the agency gave parties
insufficient time from the posting of amendment No. 2 on FBO to
respond to the amended solicitation. The Army argues that the
protest was untimely filed since it amounted to a challenge to
the terms of the solicitation, which had to be filed not later
than the next closing time for receipt of proposals. AR at 6.
Our Bid Protest Regulations contain strict rules for the timely
submission of protests. They specifically require that a protest
based upon alleged improprieties in a solicitation that are
apparent prior to bid opening must be filed before that time.
Bid Protest Regulations, 4 C.F.R. § 21.2(a)(1). We have
recognized an exception to this requirement, however, when, as a
result of extremely limited time periods, circumstances do not
permit filing before bid opening. See, e.g., Ling Dynamic Sys.,
Inc., B‑252091, May 24, 1993, 93-1 CPD ¶ 407 at 3 (protester
learned basis for challenging solicitation only 2 hours before
bid opening); G. Davidson Co., Inc., B‑249331, July 14, 1992,
92-2 CPD ¶ 21 at 2 n.1 (concluding that 2 hours and 45 minutes
was not a reasonable period of time within which to file a
protest); The Big Picture Co., B-210535, Feb. 17, 1983, 83-1 CPD
¶ 166 at 2 (amendment received one day before bid opening). In
such cases, we have applied the rule that the protester must
challenge the asserted impropriety no later than 10 days from
the time it knew or should have known of its basis for protest.
See, e.g., The Big Picture Company, supra; G. Davidson Co.,
Inc., supra.
Here, as indicated above, amendment No. 2 was not posted on FBO
until after business hours on July 29, and it is undisputed that
Eastern Forestry first became aware of amendment No. 2 the next
morning, approximately 45 minutes before the scheduled bid
opening. In these circumstances, given the extremely limited
amount of time available before bid opening, we find that it is
appropriate to apply the 10‑day test for timeliness. Since
Eastern Forestry’s protest was filed on July 31, one day after
bid opening, the protest is timely. (Eastern
Forestry B-411848: Nov 9, 2015) (pdf)
On April 4, 2014,
Adams filed the instant protest with our Office asserting, as it
had in its bid protests at the courts, that the agency
improperly set aside the Job Corps center requirements for small
businesses in violation of the Workforce Investment Act (29
U.S.C. § 2887), the Small Business Act (15 U.S.C. § 644(a)), and
the Federal Acquisition Regulation (FAR § 19.502-1). Adams also
argued that the agency’s decision to set aside the procurements
violated the Consolidated Appropriations Act of 2014 (H.R. 3547,
113th Congress).
Based upon our review of the record, we find that Adams’
arguments with regard to the agency’s violation of the Workforce
Investment Act, Small Business Act, and the FAR are untimely
challenges to the terms of the solicitations. Our Bid Protest
Regulations contain strict rules for the timely submission of
protests. They require that a protest based upon alleged
improprieties in a solicitation that are apparent prior to the
closing time for receipt of proposals be filed before that time.
Bid Protest Regulations, 4 C.F.R. § 21.2(a)(1) (2014).
Here, Adams was aware that the solicitations were set-aside for
small businesses at the time the RFPs were issued on May 8, 2012
(Gadsden) and December 14 (Shriver) respectively but waited to
file its protests with our Office until April 4, 2014. Thus, the
protester’s challenges to the solicitations set‑aside
requirements are untimely.
The protester nonetheless asserts that, although it did not file
its protests with our Office until after the closing dates for
the solicitations, each of its protest grounds were timely filed
with our Office because its protest bases were the subject of
litigation before a court of competent jurisdiction when it
filed with the COFC and subsequently appealed those decisions to
the CAFC. Adams argues that, had it filed with our Office during
the pendency of these proceedings we would have dismissed its
protests because they were before a court of competent
jurisdiction. See 4 C.F.R. § 21.11(b). In effect, the protester
asserts that its filings with the COFC and CAFC tolled the
timeliness requirements of our Office. We do not agree.
While the protester is correct that our Office will dismiss a
protest where another protest addressing the same issues is
pending before a court of competition jurisdiction, the
completion of the proceedings before the court does not
automatically restart the time for filing a protest with our
Office. Instead, we must consider how the court’s decision
affects any subsequently-filed protest before our Office. Where,
as here, a decision by the COFC (including an appeal before the
CAFC) constitutes a final adjudication on the merits with
respect to the procurement, such a decision bars further
reconsideration of the merits of those issues by our Office. See
Warvel Prods., Inc., B‑281051.5, July 7, 1999, 99-2 CPD ¶ 13 at
8. Here, because the COFC and CAFC decisions were adjudicated by
the COFC and CAFC in the agency’s favor, we will not reconsider
Adams’ claims with regard to the agency’s violation of the
Workforce Investment Act, the Small Business Act, and the FAR.
Similarly, Adams’ challenge to the solicitation based upon its
assertion that the set‑aside violated the Consolidated
Appropriations Act of 2014 is not a matter that we will
consider. In this regard, Adams states in its protests that the
Act was passed on January 18, 2014, and that the provisions of
that Act direct the agency to reconsider its decision to set
aside the procurements for small businesses.[1] This matter,
however, could have been brought before the COFC and CAFC. As of
January 18, the date the Act was passed, the CAFC had yet to
issue its opinion on Adams’ appeals of the COFC decisions in
Gadsden or Shriver. The protester did not, however, file new
protests with COFC regarding the Consolidated Appropriations Act
of 2014. Additionally, the agency asserts, and the protester
does not dispute, Adams’ petition to the Federal Circuit for a
rehearing en banc on February 5 cited the House Report language
for the Consolidated Appropriations Act, 2014 to support its
position that the agency’s set-aside was improper. The Circuit
Court denied Adams’ petition on March 14.
As our Office has held with regard to a final adjudication by a
court of competent jurisdiction, the effect of such a judgment
extends to both matters that were decided, as well as those that
could have been brought before the court by the protester.
Warvel Prods., Inc., supra. Accordingly, we find Adams’
arguments regarding the Consolidated Appropriations Act of 2014
either were or could have been the subject of the proceedings
before the COFC and CAFC.
Finally, Adams asserts that its protest is timely because it
could not have filed its protest until it knew what the agency
planned to do in response to the Consolidated Appropriations Act
and the CAFC’s opinion. In this regard, the protester argues
that the agency’s intention was not known until the agency
issued its procurement plan on March 27, 2014. The procurement
notice published by the agency on this date provided “Award
Dates” for “Ongoing Procurements” (Gadsden--April 14, 2014;
Shriver--May 14, 2014), and for “Upcoming Procurements” provided
the “Anticipated RFP Release Date, Anticipated RFP Closing Date,
and Anticipated Award Date” for various Job Corps centers broken
down by region. See Agency Notice (Mar. 27, 2014).
We do not agree with the protester that the agency’s March 27
notice--which simply announced the agency’s anticipated award
dates for the Gadsden and Shriver Job Corps centers--restarted
the time for which it could file its protest. As discussed
above, the COFC and CAFC adjudicated the protester’s set-aside
arguments in favor of the agency; the agency was under no
obligation to amend or otherwise consider amending the
solicitations it had issued in 2012. As also discussed above,
for purposes of our Office’s review, the courts’ resolution
includes the arguments the protester raised or could have raised
regarding the Consolidated Appropriations Act of 2014. To the
extent the protester contends that it is now timely to challenge
the agency’s decision not to take further action in response to
the CAFC’s decision or the Consolidated Appropriations Act of
2014, we find no merit to this argument. (Adams
and Associates, Inc., B-409680,B-409681: Apr 22, 2014)
(pdf)
First, Lulus
argues that the agency improperly failed to include past
performance questionnaires in the solicitation. We find that
this contention is untimely. If Lulus was concerned that the
solicitation lacked past performance questionnaires, it should
have raised its objection prior to the deadline for submitting
bids; protests of alleged solicitation improprieties such as
this must be filed no later than the time that bids were due.
Bid Protest Regulations, 4 C.F.R. § 21.1(a)(1) (2013). Since
Lulus did not raise this argument until after award, we dismiss
this protest argument as untimely. (Lulus
Ostrich Ranch, B-408993.2: Feb 21, 2014) (pdf)
As a threshold
matter, the agency argues that Motorola’s supplemental protest
is untimely because it was not filed within 10 days of
Motorola’s counsel receiving the agency’s report. According to
the agency, since the protester’s counsel had the information
necessary to advance the allegation--the fact that Harris
intended to furnish the Motorola APX 7000 radio--the allegation,
to be timely, had to be filed within 10 days of counsel’s
receipt of the agency report. The agency contends that
protester’s counsel stands in the shoes of his or her client for
purposes of using information furnished under a protective
order, and that information known to the client--such as company
policies--is imputed to counsel for purposes of meeting our
timeliness rules. According to the agency, “Motorola cannot
legitimately hide behind the ignorance of its attorneys as to
its asserted corporate practices to evade the timeliness rules
applied to protests.” Agency Supplemental Report at 1.
We agree with the agency that, in most instances, counsel must
effectively stand in the shoes of the client where information
is covered by a protective order and counsel cannot properly
obtain the benefit of his or her client’s input. See generally,
Columbia Research Corp., B-247073, Sept. 17, 1992, 92-2 CPD ¶
184. This is not such a case. First, and most importantly, the
record shows that Motorola diligently pursued the information in
question at all relevant times. As noted, when it received its
debriefing, as well as immediately thereafter, Motorola not only
specifically requested the information, but also provided an
underlying legal basis for its belief that it was entitled to
the information.
Second, the record shows that Motorola’s counsel not only timely
and properly followed the procedures outlined in the protective
order in seeking to obtain the information for release to their
client but, in fact, went beyond what was required. In this
connection, protester’s counsel provided agency counsel with a
proposed redacted version of the agency’s LM/COS within 2 days
of receiving the agency report. Thereafter, pursuant to the
terms of the protective order, protester’s counsel waited two
business days before tentatively concluding that agency counsel
did not object to the proposed redacted version of the LM/COS.
However, out of an abundance of caution, protester’s counsel
still did not release the information to their client, as they
legally were entitled to do under the terms of the protective
order. Instead, protester’s counsel attempted to contact agency
counsel to obtain her concurrence to the release of the redacted
LM/COS.
Agency counsel waited yet another day before advising
protester’s counsel that she objected to the release of the
proposed redacted LM/COS. By the time protester’s counsel heard
from agency counsel, a federal holiday was upon us. The
following Monday, protester’s comments were due to be filed.
Those comments were timely filed without protester’s counsel
having the benefit of the client’s input. Nonetheless, the very
next day, after protester’s counsel sought the assistance of our
Office in resolving the dispute, agency counsel acquiesced and
made the information available outside of the protective order.
Motorola filed its supplemental protest allegation within 10
days of receiving the information.
In the final analysis, the record shows that Motorola diligently
and persistently sought the information in question, and its
counsel went beyond what was required under the protective order
in order not to release information that the agency may have
thought was properly protected. Ultimately that information was
provided to Motorola by the agency, in apparent recognition of
the fact that Motorola legally was entitled to the information
under the FAR in the first instance. The agency now seeks
unfairly to benefit from its own dilatory behavior, since it is
clear from the record that Motorola would (and did) advance this
argument as soon as it had the relevant information. We decline
the agency’s request to dismiss the issue, conclude that it is
timely, and consider it on the merits. (Motorola
Solutions, Inc, B-409148, B-409148.2, Jan 28, 2014) (pdf)
Timeliness
As an initial matter, the Marine Corps argues that Logis-Tech’s
protest should be dismissed as untimely because it was filed
with our Office more than 10 days after the debriefing in which
Logis-Tech learned the basis for its protest. The Marine Corps
argues that Logis-Tech cannot base the timeliness of its GAO
protest on its filing of a timely agency-level protest, because
the Marine Corps, in its view, lacks jurisdiction to consider an
agency-level protest of a task order.
The Marine Corps’ argument that it lacks jurisdiction to hear an
agency-level protest involving the issuance of a task or
delivery order under a multiple-award, indefinite-delivery,
indefinite-quantity contract is based on language in the statute
that authorizes--and establishes a preference for the multiple
awards of--task order contracts. See generally 10 U.S.C. §§
2304a-2304e (defense agencies); 41 U.S.C. §§ 4101-4106. The
Marine Corps points to certain provisions within the statutory
scheme authorizing the use of task order contracts that limit
the rights of companies to file a protest. Among other things,
these provisions state that the “Comptroller General of the
United States shall have exclusive jurisdiction of a protest
authorized under paragraph (1)(B).” 10 U.S.C. § 2304c(e)(2).
Hence, the Marine Corps concludes that it may not hear an
agency-level protest of the issuance of a task order (under a
task order contract), and that the time lost by the protester
filing an unauthorized agency level protest now means that the
protester cannot file a timely protest with the GAO.
In contrast, Logis-Tech counters that its agency-level protest
was timely filed, and that upon receipt of the Marine Corps’
dismissal of its protest, it timely filed a follow-on protest
with GAO. Logis-Tech also points out that the Marine Corps
encourages its contractors to resolve disputes directly with the
agency when possible. Protester’s Opposition to Dismissal, Oct.
24, 2012, at 1.
The only issue before GAO is whether the task order protest
filed with GAO is timely. To answer this question, we need look
no further than our Bid Protest Regulations. The timeliness
rules within our Bid Protest Regulations, in relevant part,
provide as follows:
[i]f 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 agency imposes a more stringent time for filing, in
which case the agency’s time for filing will control. . . .
4 C.F.R. § 21.2(a)(3) (2012) (emphasis added).
Our timeliness rules do not require GAO to consider whether the
initial adverse agency action is in the form of dismissal (for
lack of jurisdiction or other reasons) or denial on the merits.
So long as the protest was filed with the agency in a timely
manner, it will be considered timely with our Office if filed
within 10 days of when the protester actually or constructively
learned that the agency denied or dismissed the protest. For
these reasons, we conclude that Logis-Tech’s GAO protest is
timely because it was timely filed with the agency, and then
timely filed within 10 days of the agency’s decision to dismiss
the agency-level protest. See 4 C.F.R. § 21.2(a)(3). (Logis-Tech,
Inc., B-407687, Jan 24, 2013) (pdf)
Concerning the
timeliness of McKissack’s challenge of the board’s
qualifications, our Bid Protest Regulations require that
protests not based upon alleged improprieties in a solicitation:
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 ground
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 no later than 10 days after the
date on which the debriefing is held.
4 C.F.R. § 21.2(a)(2) (2010). McKissack asserts that its
challenge to the qualification of the evaluation board is not
untimely because the debriefing it is due pursuant to FAR §
36.607(b) is a “required” debriefing within the meaning of our
timeliness regulations and, therefore, it should have the right
to file a protest concerning any aspect of the procurement other
than challenges to the solicitation, such as its challenge to
the qualifications of the evaluation board, within 10 days of
the date it receives its debriefing. We disagree, and conclude
that the timeliness exception in our Bid Protest Regulations
does not apply to debriefings provided in the context of an A/E
Brooks Act procurement, and that McKissack was required to file
its challenge within ten days of the date it knew or should have
known the basis for its protest.
The debriefing exception in our timeliness regulations applies
only to protests challenging a procurement conducted on the
basis of “competitive proposals” under which a debriefing “is
requested and, when requested, is required.” 4 C.F.R. §
21.2(a)(2). The term “competitive proposals” is not defined by
our Bid Protest Regulations, nor is it expressly defined by
statute or regulation. Rather, it has been coined a “term of
art.” Systems Plus, Inc. v. United States, 68 Fed. Cl. 206,
209-210 (2005) (holding that a procurement under the Federal
Supply Schedule program, pursuant to FAR Subpart 8.4 was not
conducted on the basis of competitive proposals). We conclude
that an A/E competition conducted pursuant to the procedures
established by the Brooks Act and FAR Subpart 36.6 does not
constitute a competition based on “competitive proposals,” and
that the exception in our timeliness rules does not apply.
In reaching this conclusion, we consider that our Office has
previously determined that the use of negotiated procedures in
accordance with FAR Part 15--as evidenced by the issuance of a
request for proposals--is the hallmark of a procurement
conducted on the basis of competitive proposals. See The MIL
Corp., B-297508, B-297508.2, Jan. 26, 2006, 2006 CPD ¶ 34 at 6
(citing, e.g., Peacock, Myers & Adams, B-279327, Mar. 24, 1998,
98-1 CPD ¶ 94); see also, Rhonda Podojil--Agency Tender
Official, B-311310, May 9, 2008, 2008 CPD ¶ 94 at 3 (holding
that A-76 competition, where the agency issued a solicitation
for “proposals” and expressly invoked FAR 15 procedures, was
conducted on the basis of competitive proposals for the purposes
of the application of the debriefing exception to our timeliness
regulations). Where a procurement is not conducted pursuant to
these procedures, we have held that the procurement was not one
conducted on the basis of competitive proposals, and that the
exception to our timeliness rules does not apply. See The MIL
Corp., supra (holding that procurement conducted pursuant to FAR
Subpart 8.4, rather than FAR Part 15, was not conducted on the
basis of competitive proposals).
The procurement at issue in this case was not conducted pursuant
to FAR Part 15 procedures, but under the Brooks Act and FAR
Subpart 36.6. As noted above, these procedures do not provide
for the issuance of a solicitation, the preparation of
proposals, the submission or prices, or other hallmarks of a FAR
Part 15 competition. In fact, in selecting the most qualified
firms on the basis of A/E qualification statements under the
Brooks Act, FAR Part 15 procedures are expressly not applied
pursuant to FAR § 36.601-3(b). Accordingly, an A/E procurement
under FAR subpart 36.6 does not share the characteristics of the
FAR Part 15 procurements that we consider to be conducted on the
basis of “competitive proposals.”
Additionally, we find FAR § 6.102 instructive in its separation
of Brooks Act procedures from “competitive proposals.” FAR §
6.102 describes the “Use of Competitive Procedures” under the
FAR. FAR § 6.102(b) is entitled “[c]ompetitive proposals,” while
FAR § 6.102(d) is entitled “[o]ther competitive procedures.”
These sections expressly carve out procurements conducted
pursuant to the Brooks Act and FAR Subpart 36.6 from the
category of competitions based on “competitive proposals.”
Instead, procurements under FAR Subpart 36.6 are specifically
highlighted as a form of “other competitive procedures.”
In sum, because we conclude that the debriefing due to McKissack
under FAR § 36.607 is not a debriefing in a “procurement
conducted on the basis of competitive proposals under which a
debriefing is requested and, when requested, is required,” the
exception for such debriefings in our Office’s timeliness
regulations does not apply, and McKissack was required to file
any protest other than a challenge to the terms of the
solicitation within 10 days after the basis of protest is known
or should have been known. Where McKissack knew the
qualifications of the individuals on the evaluation board at the
time of the oral evaluation on February 7, was informed of
Parson’s selection as the most highly rated firm on February 27,
but did not file its protest until March 26, the protest is
untimely and must be dismissed. (McKissack-URS
Partners, JV, B-406489.2, B-406489.3, B-406489.4, May 22,
2012) (pdf)
As an initial
matter, GSA argues that the protest is untimely because it was
filed more than 10 days after the protester received its written
debriefing on October 13; the protest was filed on October 25,
twelve days after October 13. See Bid Protest Regulations, 4
C.F.R. § 21.2(a)(2) (2011) (establishing that for protests
challenging a procurement conducted on the basis of competitive
proposals under which a debriefing is requested and, when
requested, is required, such protests must be filed not later
than 10 days after the date on which the debriefing was held).
We disagree.
The record reflects that the agency’s written debriefing was
preceded and followed by the agency’s opening the door to a
verbal continuation of the debriefing process. Specifically, the
contracting officer initially advised Harris that the agency
planned to provide Harris with a written debriefing. In
response, Harris e-mailed to ask whether, in addition to the
written debriefing, GSA would also be amenable to “a verbal
debrief.” Protest, Exhibit 9, Oct. 12, 2011 E-Mail Exchange
Between Harris and Contracting Officer. Prior to providing the
written debriefing, the contracting officer responded by stating
“Let me get you the written one, after you read it, call me and
I will see if I can fill in the gaps.” Id. On October 13, Harris
received the written debriefing, which included the statement,
“[t]his document satisfies the debriefing requirement by
providing the basis for the selection decision and contract
award in accordance with [Federal Acquisition Regulation (FAR)
§] 16.506.” Then, on October 17, 4 days after Harris received
the written debriefing and within its 10-day protest window, the
contracting officer responded to Harris’ second request for a
“verbal debrief” by saying, “I don’t mind a verbal” and asking
for the firm’s questions. Id., Exh. 12, Oct. 17-18, 2011 E-Mail
Exchange Between Harris and Contracting Officer. On October 18,
Harris sent the contracting officer a letter with a subject line
which read “Verbal Debrief Request.” The letter reiterated
Harris’ request for a “verbal debrief” and provided additional
questions to “facilitate the furtherance of the debrief
process.” Protest, Exh. 13. On October 20, a telephone
call--which Harris refers to as an oral debriefing--took place
between Harris and the contracting officer to address these
questions. The contracting officer did not take either of the
post-written debriefing opportunities to tell Harris that his
verbal responses to the firm’s questions were not part of the
debriefing process, notwithstanding Harris’ continued references
to an oral debriefing process.
In our view, notwithstanding the statement made in the written
debriefing, the above communications reflected, at a minimum,
considerable ambiguity as to whether the agency’s debriefing
process was continuing. Given this ambiguity, and considering
that we resolve doubts regarding timeliness in favor of
protesters, Fort Mojave/Hummel, a Joint Venture, B-296961, Oct.
18, 2005, 2005 CPD ¶ 181 at 6 n.7, we find that the protester’s
challenges to the agency’s evaluation are timely when filed
within 10 days of the agency’s conclusion of what Harris refers
to as its “oral debriefing” on October 20.
In support of its argument that Harris’ protest is untimely, GSA
cites our decision in New SI, LLC, B-295209 et al., Nov. 22,
2004, 2005 CPD ¶ 71 at 3. Our decision in New SI, LLC, however,
is distinguishable from the case at hand. In New SI, LLC, we
found a protest untimely when the protest was filed more than 10
days after the protester received a written debriefing, but
within 10 days of the conclusion of further oral communications
between the protester and the agency. In New SI, LLC, unlike the
case at hand, we found that there was no affirmative indication
from the agency that the debriefing would remain open after a
scheduled session and thus we considered the debriefing to have
concluded at the end of that session. In this case however,
given the agency’s willingness to further provide what both the
protester and both parties refer to as a “verbal” debriefing,
Harris reasonably understood the agency as having extended the
debriefing process to, in the contracting officer’s words, “fill
in the gaps,” from the written debriefing. (Harris
IT Services Corporation, B-406067, Jan 27, 2012) (pdf)
The Air Force
argues that HBDC’s protest should be dismissed because the
certified return receipt demonstrates that HBDC received notice
of its exclusion from the competition on November 4, and because
HBDC did not timely request a debriefing or file a timely
protest. HBDC maintains that the timeliness of its debriefing
request and protest should be measured from November 15, as
opposed to November 4, since the Air Force sent the notice of
exclusion to an allegedly “incorrect address.”
More specifically, HBDC asserts that the Air Force erred in
sending the notice to HBDC’s physical government business
address, rather than to HBDC’s designated mailing address, and
due to this error the notice cannot be considered received by
HBDC until the time the notice reached HBDC’s contracts manager
on November 15. HBDC argues that its separate mailing address
was identified on Standard Form (SF) 33 of its most recent
proposal revision of September 14, and is accurately listed in
HBDC’s Central Contracting Registry (CCR) Database profile,
along with its physical government business address.
HBDC also argues that the Defense FAR Supplement (DFARS) and its
associated Procedure, Guidance, and Information (PGI), require
defense agencies to “use the CCR database as the primary source
of contractor information for contract award and
administration,” and “shall use the CCR database as the
authoritative source” for certain information, including a
contractor’s mailing address. DFARS PGI 204.1103. Finally, HBDC
notes that the Air Force sent correspondence to HBDC’s “correct”
mailing address earlier in the competition.
We fundamentally disagree with HBDC’s premise that the Air Force
directed the notice of exclusion to an “incorrect” address. The
Air Force notice correctly indicated--i.e., there were no
typographical errors--an address HBDC provided to the Air Force
throughout the competition--i.e., in its initial proposal, in
its revised proposal, on the cover letter of its revised
proposal signed by its contracts manager, and in the signature
line of email correspondence sent by its contracts manager. AM,
Tab 1, at 2; Tab 2, at 1, 2; Tab 5 at 2, 3. It is this address
which HBDC now claims to be “incorrect” for the purpose of
receiving the agency’s exclusion letter.
To the extent HBDC listed a different address on the SF 33 of
its September 14 revised proposal submission, this address was
not identified as a “mailing address” or HBDC’s “correct”
address, and the record reflects that in various other places in
this submission, HBDC identified its address as the address used
by the agency to provide this notice.[1] HBDC Response, Tab 3,
at 1. We also note that the DFAS PGI provisions that HBDC relies
on for establishing its “correct” mailing address do not apply
to agency communications during the course of a procurement--by
their terms they apply to contract award and contract
administration matters. The use of a firm’s CCR information has
never been established as a requirement when providing adverse
action notices.
More importantly, our timeliness rules do not turn on whether an
agency has sent information to a particular designated address;
rather, we look to whether the relevant information was in fact
received by the offeror. In this regard, our Office has
previously held that actual notification to a company’s
designated point of contact is not required to constitute notice
under our Bid Protest Regulations, where notice is otherwise
received by the firm. For example, in Jarrell-Ash Div., Fisher
Scientific Co.--Reconsideration, we held that notice of
rejection of a proposal was effective on the date it was
received at the company’s sales office address, even where the
sales office address was not designated in the firm’s proposal,
and was not the address of the individuals who prepared the
proposal. Jarrell-Ash Div., Fisher Scientific
Co.--Reconsideration, B-209236.3, Dec. 21, 1982, 82-2 CPD ¶ 562
at 3.
Here, it is beyond dispute that the Air Force sent the notice of
exclusion, via certified mail, to HBDC’s designated contracts
manager at an address set forth on numerous proposal documents
submitted by HBDC--including a revised proposal cover letter
signed by the contracts manager--and that receipt of the notice
on November 4 is confirmed by an HBDC employee’s signature on
the certified mail return receipt.
Accordingly, there is no basis for HBDC to claim that the Air
Force caused the delay here. That it took HBDC 11 days to route
the notice of exclusion to the appropriate person does not toll
the filing deadline imposed by our regulations, or the statutory
deadline to request a required debriefing.
In this regard, Our Bid Protest Regulations contain strict rules
for the timely submission of protests. Under these rules, a
protest based on alleged improprieties in a solicitation must be
filed prior to bid opening or the time established for receipt
of proposals, 4 C.F.R. § 21.2(a)(1) (2010), and all other
protests must be filed no later than 10 calendar days after the
protester knew, or should have known, of the basis for protest,
whichever is earlier. 4 C.F.R. § 21.2(a)(2). Where a protester
timely requests a required debriefing,a protest filed within 10
days of the debriefing will be considered timely with respect to
bases known before or as a result of the debriefing. Id. An
offeror excluded from further consideration prior to contract
award may request a preaward debriefing, but must submit a
written request to the contracting officer within three days
after receipt of the agency’s notice of exclusion. Federal
Acquisition Regulation (FAR) § 15.505(a)(1). An offeror that
fails to submit its request to the contracting officer within
three days after receiving notice of exclusion is not entitled
to either a preaward, or post-award, debriefing. FAR §
15.505(a)(3).
Accordingly, HBDC was required to request a debriefing within
three days of its receipt of the Air Force notice on November 4,
or, absent a debriefing, was required to file its protest no
later than 10 days after that date. Where HBDC did not timely
request a debriefing, and failed to file its protest until 17
days after it was notified that its proposal had been excluded
from the competitive range, the protest is untimely and must be
dismissed.
The protest is dismissed. (Hawker
Beechcraft Defense Company, LLC, B-406170, December 22,
2011)
Improper
Receipt of Information
TMG next argues that SoBran improperly received and used
information about the Army's future staffing to reduce the
number of proposed employees within its proposal. In support of
this allegation, TMG provides an affidavit from one of its
employees who states that, on August 11, 2011, a SoBran employee
told her that, during proposal preparation, SoBran had
information that the Army would be hiring additional veterinary
technicians to perform work under the contract, thereby reducing
the need for contractor personnel. This allegation, first raised
in TMG's August 29 comments on the agency report, is untimely.
Under our Bid Protest Regulations, a protest based on other than
solicitation improprieties must be filed not later than 10
calendar after the basis of protest is known or should have been
known, whichever is earlier. 4 C.F.R. sect. 21.2(a)(2) (2011).
When a protester initially files a timely protest, and later
supplements it with independent protest grounds, the
later-raised allegations must independently satisfy the
timeliness requirements, since our Regulations do not
contemplate the unwarranted piecemeal presentation or
development of protest issues. Maybank Industries, LLC,
B-403327, B-403327.2, Oct. 21, 2010, 2010 CPD para. 249 at 4.
The record shows that, by August 11, TMG knew that the
approximately $400,000 price difference between its proposal and
SoBran's was the deciding factor in the award decision. By this
time, TMG had also concluded, as it stated in its July 19
initial protest, that it was unclear how SoBran could propose a
price $400,000 less than TMG's and still offer the same number
of quality personnel at marketable labor rates. Initial Protest
at 5. When TMG allegedly heard, on August 11, that SoBran had
learned, during the preparation of its proposal, that the need
for contractor personnel would be reduced, information not
provided to the protester, it had all the information it needed
to raise this allegation. While the record of discussions TMG
received in the agency report may have provided additional
support for this allegation, this information was not necessary
to raise this allegation. As a result, TMG's allegation, first
raised more than 10 days after the protester knew or should have
known the basis of protest, is untimely and will not be
considered. (The McConnell
Group, Inc., B-405377, October 21, 2011) (pdf)
On September 16,
2010, prior to DOL's submission of its agency report on WTI's
protest, another unsuccessful offeror (Enterprise Solutions
Realized, Inc. (ESR)) filed a protest with the United States
Court of Federal Claims (COFC), challenging the award to ASC and
seeking a temporary restraining order and injunctive relief.
Docket No. 1:10CV-00628-FMA. Because the protested procurement
was then pending before a court of competent jurisdiction, we
dismissed WTI's protest in accordance with our Bid Protest
Regulations, 4 C.F.R. sect. 21.11(b) (2010).
On September 27, DOL filed the administrative record with COFC.
After reviewing the record, ESR moved on October 7 to dismiss
its protest. The Court dismissed ESR's complaint on October 12.
WTI did not intervene in the COFC litigation. Instead, according
to WTI, it monitored the COFC proceedings on a weekly basis
using the commercial website FreeCourtDockets.com (at http://www.freecourtdockets.com).
WTI Final Comments at 19. Based on the commercial website's
report of the official COFC Docket Entry No. 1 (dated Sept. 16,
2010), which refers to an "Answer due by 11/15/2010," WTI
believed an answer was due from the COFC judge on that date.
Protest at 3. Interpreting the anticipated answer as a
"resolution" of the matter at COFC, WTI re-filed its protest
with our Office on November 18, 37 days after the Court's
dismissal of ESR's complaint. WTI Response to Motion to Dismiss
at 6.
Our Bid Protest Regulations contain strict rules for the timely
submission of protests. Under these rules, a protest based on
other than alleged improprieties in a solicitation must be filed
no later than 10 calendar days after the protester knew, or
should have known, of the basis for protest, whichever is
earlier. 4 C.F.R. sect. 21.2(a)(2). A protester may not
passively await information providing a basis for protest.
Rather, a protester has an affirmative obligation to diligently
pursue such information, Automated Med. Prods. Corp., B‑275835,
Feb. 3, 1997, 97-1 CPD para. 52 at 2-3, and a protester's
failure to utilize the most expeditious information-gathering
approach under the circumstances may constitute a failure to
meet its obligation in this regard. See, e.g., Thomas May Constr.
Co., B-255683, Mar. 23, 1994, 94-1 CPD para. 210 (no diligent
pursuit where protester waited until after notice of award to
file Freedom of Information Act requests seeking information
publicly available at bid opening). Here, WTI did not meet its
obligation to utilize the most expeditious information-gathering
approach under the circumstances.
WTI asserts that it acted promptly in re-filing its protest at
our Office, since it acted within 3 days of the November 15 date
for filing an answer as specified in the official COFC Docket
Entry No. 1 included on the FreeCourtDockets.com website.
However, while that entry may have included the most recent
information concerning the schedule for the COFC litigation
available on the FreeCourtDockets.com website, the record
indicates that more up-to-date information was available to the
public through the official website for litigation at COFC (and
other federal courts).
In this regard, the official electronic case docket for federal
courts, including COFC, is maintained online in the PACER
database. According to the PACER website, it is a service of the
U.S. Judiciary, operated by the Administrative Office of the
U.S. Courts, which provides electronic public access to case and
docket information available immediately after electronic
filings are made. PACER, Frequently Asked Questions (FAQ),
http://www.pacer.gov/psc/faq.html (Jan. 25, 2011). Here, the
publicly-available PACER docket for ESR's protest indicates that
the order granting ESR's motion to dismiss was filed and
judgment entered on October 12; this information was reflected
in PACER that same day. PACER Docket, Docket No.
1:10CV-00628-FMA, Entry Nos. 21-22. Had WTI been diligently
monitoring the PACER website, instead of the commercial
FreeCourtDockets.com website, it would have promptly known on or
about October 12 that the ESR litigation was resolved by
dismissal of ESR's complaint on October 12. We conclude that in
relying on a commercial website (freecourtdockets.com) rather
than the up-to-date, official government online docket, WTI was
not using the most expeditious information- gathering approach
to follow the COFC litigation.
Our conclusion is not changed by the fact that, as noted by WTI,
PACER usage requires registration and involves fees. PACER is
available to anyone who registers for an account and there is no
charge for registration. PACER, Home Page, at http://www.pacer.gov
(Jan. 25, 2011). While there is a charge for access to PACER
documents, the charges are nominal ($.08 per page, up to $2.40
per document), and are waived when usage is less than $10 in any
given quarter. PACER FAQ at http://www.pacer.gov/psc/faq.html,
(Jan. 25, 2011). Protesters pursuing litigation at our Office
are expected to bear such costs, and the nominal cost for
reasonably monitoring the COFC litigation provides no excuse for
not doing so.
Since WTI could and should have known on or about October 12
that ESR's protest at COFC had been resolved, which furnished
the basis for its re-filing at our Office, its November 18
re-filing of its protest, some 37 days later, is untimely.
(Waterfront Technologies, Inc.,
B-403638.3, February 22, 2011) (pdf)
The RFQ was
issued using simplified acquisition procedures for a
non-magnetic stud link specialized chain, and the RFQ included
Federal Acquisition Regulation (FAR) clause 52.213-4, Terms and
Conditions -Simplified Acquisitions (Other Than Commercial
Items).
Baldt's quote was $864,000, and Lister's quote was $720,000.
Award was made to Lister, and Baldt protested to our Office,
complaining that the award exceeded the simplified acquisition
threshold. Baldt requests our recommendation that the Navy
terminate the contract and resolicit the requirements using
either sealed bidding or contracting by negotiation procedures.
Protest at 4.
We find that the protest is untimely and not for consideration
by our Office. Our Bid Protest Regulations contain strict rules
requiring timely submission of protests. Under these rules,
protests based upon alleged improprieties in a solicitation
which are apparent prior to the time set for receipt of initial
proposals must be filed prior to that time. 4 C.F.R. sect.
21.2(a)(1) (2010). Underlying our timeliness rules regarding
solicitation improprieties is the principle that challenges
which go to the heart of the underlying ground rules by which a
competition is conducted, should be resolved as early as
practicable during the solicitation process, but certainly in
advance of an award decision if possible, not afterwards.
Continental Staffing, Inc., B-299054, Jan. 29, 2007, 2007 CPD
para. 18 at 4-5. Such a rule promotes fundamental fairness in
the competitive process by preventing an offeror from taking
advantage of the government as well as other offerors, by
waiting silently only to spring forward with an alleged defect
in an effort to restart the procurement process, potentially
armed with increased knowledge of its competitors' position or
information. See also Blue & Gold, Fleet, L.P. v. United States,
492 F.3d 1308, 1313-14 (Fed. Cir. 2007). It also promotes
efficiency by ensuring that concerns regarding a solicitation
are raised before contractor and government resources are
expended in pursuing and awarding the contract, thus avoiding
costly and unproductive litigation after the fact. Id.
The essence of Baldt's allegation is that the agency should not
have used simplified acquisition procedures to procure the items
at issue here, and that, given the amount of the quotes, no
award is possible under the solicitation (including an award to
Baldt). However, Baldt knew, or should have known, prior to the
time set for receipt of quotes, that its own quote would be
priced more than eight times higher than the simplified
acquisition threshold, and that any resulting contract would
likely exceed the threshold. We find that Baldt was required to
protest the agency's use of the simplified acquisition
procedures prior to the closing time, rather than waiting till
after award. Accordingly, Baldt's post-award protest is
untimely.
Baldt argues that we should consider its protest under our "good
cause" or "significant issue" exceptions to our timeliness
rules. See 4 C.F.R. sect. 21.2(c). The "good cause" exception is
limited to circumstances where some compelling reason beyond the
protester's control prevents the protester from filing a timely
protest. Dontas Painting Co., B-226797, May 6, 1987, 87-1 CPD
para. 484 at 2. The significant issue exception is limited to
untimely protests that raise issues of widespread interest to
the procurement community, and which have not been considered on
the merits in a prior decision. Schleicher Cmty. Corrs. Ctr.,
Inc., B-270499.3 et al., Apr. 18, 1996, 96-1 CPD para. 192 at 7.
Baldt has not demonstrated a compelling reason beyond the
protester's control that prevented the protester from filing a
timely protest, and therefore there is no basis to invoke the
"good cause" exception. Also, the record does not show that the
issues raised are of widespread interest to the procurement
community that would otherwise warrant their resolution in the
context of an otherwise untimely protest. See Critical Process
Filtration, Inc., B‑400746 et al., Jan. 22, 2009, 2009 CPD para.
25 at 6; Global Commc'ns Solutions, Inc., B‑299044, B-299044.2,
Jan. 29, 2007, 2007 CPD para. 30 at 3.
The protest is dismissed. (Baldt
Inc., B-402596.3, June 10, 2010) (pdf)
Following denial
of its agency-level protest, CES filed this protest with our
Office. The overarching theme of CES's protest is that the VA
failed to use its statutory authority to make sole-source awards
to SDVOSB concerns. However, this challenge contained in both
the agency-level protest and the protest to our Office is
untimely; it relates to the terms of the competition that were
known to the protester as early as March 17, when it received
the agency's email stating that the VA would proceed with the
procurement on a sole-source basis.
More specifically, prior to the issuance of the solicitation on
an unrestricted basis, CES sought a sole-source award as an
SDVOSB concern and the VA refused to make such award.
Protester's Comments at 2-3. Given that this acquisition was
competed on an unrestricted basis, the protester was on notice
when it submitted its offer that it would not receive the award
on a sole-source basis, or be competing for this award under an
SDVOSB set-aside. As a result, the protester's post-award
challenge is untimely and will not be considered. 4 C.F.R. sect.
21.2(a)(1), (a)(2) (2009); Raith Eng'g and Mfg. Co., W.L.L.,
B-298333.3, Jan. 9, 2007, 2007 CPD para. 9 at 2. (CES
Industries, Inc., B-401427, September 1, 2009) (pdf)
The protester
argues that GSA’s evaluation did not reasonably determine the
likely costs to the government of each vendor’s quotation
because it did not consider the differing approaches each vendor
took in preparing its price quotation. We find that this
argument is a challenge to the terms of the solicitation, and
was not timely raised.
Agencies must consider cost to the government in evaluating
competitive proposals or quotes. 10 U.S.C. sect. 2305(a)(3)(A)(ii)
(2000); AirTrak Travel et al., B-292101 et al., June 30, 2003,
2003 CPD para. 117 at 22; Health Servs. Int’l, Inc.; Apex Envtl.,
Inc., B-247433, B-247433.2, June 5, 1992, 92-1 CPD para. 493 at
3-4. Our Office has sustained pre-award challenges to the terms
of solicitations that fail to provide for a meaningful
comparison of offerors’ proposed prices or costs. E.g. CW Gov’t
Travel, Inc.-Recon; CW Gov’t Travel, Inc. et al., B-295530.2,
July 25, 2005, 2005 CPD para. 139 (sustaining pre-award
challenge to solicitation that did not require offerors to
propose binding prices for an
indefinite-delivery/indefinite-quantity contract).
In contrast, our Office has found that post-award challenges to
an agency’s cost or price evaluation scheme are not timely, if
the challenged scheme was set forth in the solicitation, because
a protest based upon alleged improprieties in a solicitation
that are apparent prior to the closing time for receipt of
initial quotes or proposals must be filed before that time. Bid
Protest Regulations, 4 C.F.R. sect. 21.2(a)(1) (2009); e.g.,
General Dynamics-Ordnance & Tactical Sys., B-401658, B-401658.2,
Oct. 26, 2009, 2009 CPD para. 217 at 6 (dismissing as untimely a
post-award challenge to evaluation scheme that could produce a
misleading result).
As discussed above, the RFQ stated that vendors would be
evaluated on the basis of their quoted prices for the eight
non-travel CLINs. The solicitation permitted vendors to quote
composite rates, that is, the representative FTE could be
comprised of numerous labor categories from the vendors’ FSS
contracts. The RFQ, however, did not require vendors to estimate
the number of hours that would be required to perform the SOW
requirements, nor did the RFQ require vendors to base their
price quotes on any specific mix of hours for the labor
categories. Instead, the solicitation directed vendors to
provide an “average” of the labor category rates included in
their price quote.[2] See RFP, Q&A No. 4.
Ball primarily contends that the agency’s conclusion that AT&T’s
evaluated price was 57% lower than Ball’s evaluated price is
misleading because the comparison of the quoted prices does not
take into account the types of labor categories selected by each
vendor. Ball argues that simply comparing the vendors’ evaluated
prices leaves unexamined the relative quality of the labor
categories quoted or the quoted labor mix, and thus does not
take into account the possibility that one vendor might require
more FTEs or labor hours than another to perform the same work.
Ball specifically contends that its composite labor rates were
comprised of a mix of labor categories that contained more
senior and more highly-qualified personnel, as compared to AT&T.
For this reason, Ball contends that, although its CLIN prices
were higher, Ball would require fewer FTEs and/or fewer hours to
perform the same work as compared to AT&T.
While we agree with Ball that the evaluation conducted by GSA
does not account for differences in the quoted labor categories,
the agency’s price evaluation was clearly consistent with the
scheme set forth in the solicitation. The plain language of the
RFQ anticipated that vendors would be evaluated based solely on
the CLIN prices quoted--that is, based on a simple average of
all of the rates for the quoted labor categories, without regard
to the number of FTEs or hours a vendor would need to perform a
given task. Nor, for that matter, were any specific tasks
identified, against which the agency could compare the vendor’s
quoted labor categories. In our view, contractors enter
procurements such as this one at their own risk; where a
protester fails to challenge an obviously flawed evaluation
scheme prior to the time for receipt of initial quotations, we
will dismiss a post-award challenge to the scheme as untimely. 4
C.F.R. sect. 21.2(a)(1). (Ball
Aerospace & Technologies Corporation, B-402148, January 25,
2010) (pdf)
Sea Box, Inc., of
East Riverton, New Jersey, protests the issuance of an order to
Charleston Marine Containers, Inc., (CMCI) of Charleston, South
Carolina, by the General Services Administration (GSA) under
request for quotations (RFQ) No. 361134, for refrigerated
containers and clip-on diesel generator sets.
(sections deleted)
Sea Box alleges that the "or equal" items offered by CMCI were
not timely or properly added to CMCI's FSS contract and that
CMCI therefore offered impermissible "open market" items that
were ineligible for consideration under the RFQ. Sea Box
advances several arguments in support of this allegation. First,
Sea Box argues that the actual closing date of the solicitation
was May 11, not May 12, and thus the "or equal" items were not
on CMCI's FSS contract by the time the RFQ closed. Second, Sea
Box argues that the GSA FSS contracting officer acted improperly
in accepting CMCI's modification request, rendering the
modification void. Finally, Sea Box argues that the May 12
contract modification was not effective until June 26, under the
terms of the applicable modifications clause, and that it was
improper for the agency to order items under CMCI's FSS contract
before the contract modification adding those items became
effective.
With regard to its first argument, Sea Box asserts that the
actual closing time of the RFQ was 5 p.m. on May 11, rather than
May 12, and that CMCI was ineligible to receive an order because
its "or equal" items had not been added to its FSS contract by
that time. This argument is based on the fact that two closing
dates were listed for this procurement, May 12 on the GSA e-Buy
system, and May 11 on the RFQ. The agency responds that the RFQ
closed at 5 p.m. on May 12, and that Sea Box is untimely to
challenge the agency's interpretation.
We conclude that Sea Box's challenge to the closing date is
untimely. The conflict between the closing date listed on the
GSA e-Buy system and the closing date listed on the RFQ
constituted a patent ambiguity that was apparent prior to the
time set for receipt of quotations. In accordance with our Bid
Protest Regulations, 4 C.F.R. sect. 21.2(a) (2009), solicitation
improprieties apparent prior to the time set for receipt of
quotations must be filed prior to that time. Having failed to
seek clarification or file a protest before the closing time of
the RFQ, Sea Box may not now assert that the only legally
permissible interpretation of the ambiguity is its own. Kellogg
Brown & Root, Inc., B-291769, B-291769.2, Mar. 24, 2003, 2003
CPD para. 96 at 8-9. Accordingly, this basis of the protest is
dismissed. (Sea Box, Inc.,
B-401523; B-401523.2, September 25, 2009) (pdf)
Our Bid Protest
Regulations contain strict rules for the timely submission of
protests. Under these rules, a protest based on other than
alleged improprieties in a solicitation must be filed no later
than 10 calendar days after the protester knew, or should have
known, of the basis for protest, whichever is earlier. 4 C.F.R.
sect. 21.2(a)(2) (2009). Moreover, the protest must set forth
all information establishing the timeliness of the protest. Id.
sect. 21.1(c)(6). Our timeliness rules reflect the dual
requirements of giving parties a fair opportunity to present
their cases and resolving protests expeditiously without unduly
disrupting or delaying the procurement process. Dominion
Aviation, Inc.--Recon., B-275419.4, Feb. 24, 1998, 98‑1 CPD para.
62 at 3.
Here, the agency emailed its decision informing the protester of
the award to K&H on Friday, August 21, 2009, at 2:24 p.m.,
eastern time. The protester filed its protest with our Office on
Thursday, September 3, more than 10 calendar days after the date
it received the agency's notification of award to another firm.
The protester, which is in the central time zone, does not
contend that the agency's email was received after the firm's
business hours on August 21, but bases the timeliness of its
protest filing upon the fact that the protester's employee (to
whom the email was directed) had left for the day and did not
open the email until Monday, August 24.
For the purposes of our timeliness rules, however, the
mechanical receipt of the email during the firm's regular
business hours on August 21 constituted notice of the agency's
award. See International Res. Group, B-286663, Jan. 31, 2001,
2001 CPD para. 35 at 5 n.7; cf. Supreme Edgelight Devices, Inc.,
B-295574, Mar. 4, 2005, 2005 CPD para. 58 at 3 (receipt of an
agency-level protest decision on a non-business day did not
constitute actual or constructive knowledge of initial adverse
agency action). Because the email was available to be opened
during regular business hours by Golight on August 21, we
consider the email to have been received by the protester on
that date. Accordingly, we find that Golight knew or should have
known the basis of its protest allegations on August 21, when it
received the agency's email notification of award, and, to be
timely filed, the protest was required to be filed within 10
calendar days of that date, but was not. See American Office
Servs., Inc. B‑290511, July 5, 2002, 2002 CPD para. 122 at 4 n.3
(protester on notice of protest basis as of date of receipt of
agency email containing proposal deficiency information).
Because the protest was not timely filed, it is dismissed.
(Golight Inc., B-401866, September
10, 2009) (pdf)
This Office's bid
protest timeliness rules provide that protests, other than those
based on alleged solicitation improprieties, shall be filed not
later than 10 days after the basis of the protest is known or
should have been known. 4 C.F.R. sect.21.2(a)(2) (2009).
Although an exception to this rule exists with regard to
protests challenging a procurement "under which a debriefing is
requested and, when requested, is required," id, this exception
is inapplicable where a protester's proposal is eliminated from
a competition prior to award, and the protester chooses to delay
receipt of a debriefing regarding that elimination until after
award. See 41 U.S.C. sect. 253b(f) (2006); Federal Acquisition
Regulation (FAR) sect.15.505(a)(2); United Int'l Investigative
Servs., Inc., B-286327, Oct. 25, 2000, 2000 CPD para. 173 at
2-4.
Here, as discussed above, UMDI was clearly on notice that the
agency was required to obtain approval from the grantees prior
to awarding a consortium contract. Additionally, upon receipt of
the agency's request that UMDI prepare a proposal summary, and
being advised that the agency "wants to provide enough
information to the grantees to be able to make informed
decisions on the consortium proposal," there can be no
reasonable dispute that UMDI knew or should have known that the
summary would be provided to the grantees for their use in
determining whether to approve a region-wide award to UMDI.
Finally, by letter dated December 10, 2008, the agency
unambiguously advised UMDI that its proposal had been eliminated
from the competition, stating that, "elimination of the
six-state consortium proposal from the competition was based on
the responses received from the representatives of the
grantees." Protest, Exh. F. Thereafter, UMDI chose to delay
receipt of a debriefing until after award, and did not file this
protest with our Office until April 7, five days after the
post-award debriefing.
Here, more than 3 months prior to the time UMDI protested the
agency's elimination of its six-state consortium proposal, UMDI
clearly knew, or should have known, all of the information on
which that portion of its protest is based. Since UMDI expressly
chose to delay receipt of a debriefing regarding elimination of
that proposal until after award, the exception to our timeliness
rules based on receipt of a required debriefing is inapplicable.
See 41 U.S.C. sect. 253b(f); FAR sect.15.505(a)(2); United Int’l
Investigative Servs., Inc., supra. Accordingly, UMDI's protest
challenging the agency's elimination of the six-state consortium
proposal from the competition is not timely filed; that portion
of the protest is dismissed. (University
of Massachusetts Donahue Institute, B-400870.3, July 15,
2009) (pdf)
On June 8, OETI
received a preaward notice, advising that the purchase order
would be issued to EOI. Upon receiving that notice, the
president of OETI telephoned the contracting officer (CO), who
confirmed that the order would be placed with EOI, and advised
OETI of the order price, $20,950. Letter from Air Force to GAO,
July 6, 2009, at 1.
On June 23, OETI filed this protest with our Office. The Air
Force requested that the protest be dismissed because, among
other reasons, the protest was untimely filed.
OETI concedes that its protest was not filed within 10 days of
the telephone call, which confirmed the identity of EOI and
disclosed its higher price. The protester nevertheless argues
that it was unfamiliar with the procedure for filing a protest,
it did not receive a prompt response to inquiries that it made
to a member of Congress, and it mistakenly believed that it
should file its protest with “the OMB,” but had no success in
identifying where to direct its protest within that agency. OETI
argues that it promptly filed its protest with our Office once
it learned of our role in deciding bid protests.
Our Bid Protest Regulations contain strict rules for the timely
submission of protests. Under these rules, a protest that is not
based on alleged improprieties in a solicitation must be filed
no later than 10 calendar days after the protester knew, or
should have known, of the basis for protest, whichever is
earlier. 4 C.F.R. sect. 21.2(a)(2). Our timeliness rules reflect
the dual requirements of giving parties a fair opportunity to
present their cases and resolving protests expeditiously without
unduly disrupting or delaying the procurement process. Dominion
Aviation, Inc.--Recon., B-275419.4, Feb. 24, 1998, 98‑1 CPD para.
62 at 3. A protester’s receipt of oral information forming the
basis of its protest is sufficient to start the 10-day time
period running; written notification is not required. Swafford
Indus., B-238055, Mar. 12, 1990, 90-1 CPD para. 268.
We dismiss the protest as untimely because it was filed more
than 10 days after the protester learned of the basis for its
protest. Neither a protester’s unfamiliarity with our
regulations, nor its decision to wait for a response to a
congressional inquiry, provides a basis for suspending our
timeliness regulations. Professional Office Ctr., B‑229704, Dec.
17, 1987, 87‑2 CPD para. 607 at 2-3. Our Bid Protest Regulations
are published in the Federal Register and the Code of Federal
Regulations; protesters are charged with constructive notice of
their contents.[4] See 4 C.F.R. sect. 21. (Optical
Energy Technologies, Inc., B-401520, July 13, 2009) (pdf)
Although, as a
general rule, a protester is not required to protest that
another firm should be excluded from the competition until after
the firm has been selected for award, see, e.g., REEP, Inc.,
B-290688, Sept. 20, 2002, 2002 CPD para. 158 at 1-2 (protest
that awardee had impermissible organizational conflict of
interest), we have applied a different rule where a protester is
aware of the facts giving rise to its allegation that another
firm should be ineligible to compete and where the protester has
been expressly advised that the agency has determined that the
firm in question is eligible. See Abt Assocs., Inc., B-294130,
Aug. 11, 2004, 2004 CPD para. 174 at 2; International Sci. &
Tech. Inst., Inc., B-259648, Jan. 12, 1995, 95-1 CPD para. 16 at
3-4. In such cases, we have found that the protester cannot wait
until an award has been made to file its protest, but instead
must protest before the closing time for receipt of proposals.
Similarly, we have found that other protests of the ground rules
of how a procurement will be conducted will be treated as
challenges to the terms of a solicitation. See, e.g., Domain
Name Alliance Registry, B‑310803.2, Aug. 18, 2008, 2008 CPD para.
168 (post-closing argument that agency should have held
discussions with protester is untimely where agency
unequivocally indicated prior to closing that agency did not
contemplate holding discussions).
Here, the record shows that Caddell was on notice, prior to the
closing date for the second phase of the procurement, of the
facts necessary to argue that Framaco did not satisfy the
statutory requirements to be a United States person. In this
regard, Caddell knew that the agency had evaluated Framaco's
United States person status in the first phase of the
procurement process and had specifically concluded that the firm
satisfied the United States person requirements. Furthermore,
Caddell does not dispute that it was aware of the basis of its
protest allegations prior to the closing time.
Instead, Caddell argues that a challenge to Framaco's
eligibility prior to award would have been premature. Caddell
points out that it could not know which, if any, of the
prequalified firms were going to submit offers under the second
phase of the procurement, and thus a requirement to protest
qualified firms prior to closing time would be wasteful and
inefficient. In this regard, the protester points that, even
though five firms were prequalified after the first phase, only
2 firms submitted proposals here.
We disagree that Caddell's protest would have been premature, if
it had been submitted prior to award. Here, as noted above, the
agency structured the procurement to allow for the
prequalification of firms' eligibility as United States persons
and publicly identified prequalified firms. This specifically
provided offerors with an opportunity to challenge the
eligibility of other potential offerors before the submission of
proposals and would have allowed for the early resolution of any
eligibility questions. Underlying our timeliness rules regarding
solicitation improprieties is the principle that challenges
which go to the heart of the underlying ground rules by which a
competition is conducted, should be resolved as early as
practicable during the solicitation process, but certainly in
advance of an award decision if possible, not afterwards. See
Armorworks Enters.. LLC, B‑400394, B‑400394.2, Sept. 23, 2008,
2008 CPD para. 176 at 7. Here, Caddell's post-award protest does
not satisfy this goal or our timeliness rules.
The protest is dismissed. (Caddell
Construction Company, Inc., B-401281, June 23, 2009) (pdf)
Our Bid Protest
Regulations contain strict rules for the timely submission of
protests. Where a protest first has been filed with a
contracting activity, any subsequent protest to our Office, to
be considered timely, must be filed within 10 calendar days of
"actual or constructive knowledge of initial adverse agency
action." 4 C.F.R. sect. 21.2(a)(3) (2008). The term "adverse
agency action" means any action or inaction on the part of a
contracting agency that is prejudicial to the position taken in
a protest filed there. 4 C.F.R. sect. 21.0(f). In this respect,
our timeliness rules reflect the dual requirements of giving
parties a fair opportunity to present their cases and resolving
protests expeditiously without unduly disrupting or delaying the
procurement process. Dominion Aviation, Inc.--Recon.,
B-275419.4, Feb. 24, 1998, 98‑1 CPD para. 62 at 3.
As noted above, the parties disagree whether RTI's January 21
request for reconsideration constituted an agency-level protest.
However, even if a letter to the agency does not explicitly
state that it was intended to be a protest and even if the
letter was not intended to be a formal bid protest, we will
nevertheless consider the letter to be a protest, where it
conveys an expression of dissatisfaction and a request for
corrective action. St Aerospace Engines Pte. Ltd., B-275725.3,
Oct. 17, 1997, 97‑2 CPD para. 106 at 3-4; American Material
Handling, Inc., B-250936, Mar. 1, 1993, 93‑1 CPD para. 183 at
2-3; Imperial Maint., Inc., B-221257, Jan. 8, 1987, 87-1 CPD
para. 34 at 3. Thus, we consider RTI's January 21 letter
requesting "reconsideration" of the agency's decision to reject
its proposal and corrective action to constitute an agency-level
protest. Imperial Maint., Inc., supra.
The initial adverse agency action in response to this
agency-level protest was the agency's January 22 letter refusing
to reconsider its decision to eliminate RTI's proposal from the
competition. RTI's protest to our Office was filed on February
3, more than 10 days from when RTI learned of the initial
adverse agency action on its agency-level protest. Therefore,
RTI's protest to our Office is untimely filed under our Bid
Protest Regulations, 4 C.F.R. sect. 21.2(a)(3).
As noted, RTI nevertheless argues that its protest to our Office
is timely because it was filed within 10 days of the required
debriefing that it obtained from the agency. Our Bid Protest
Regulations provide an exception to the general, 10-day rule for
filing a protest at our Office if the protest challenges "a
procurement conducted on the basis of competitive proposals
under which a debriefing is requested and, when requested, is
required" and the protester has been afforded a required
debriefing. 4 C.F.R. sect. 21.2(a)(2); M2 Global Tech., Ltd.,
B-400946, Jan. 8, 2009, 2009 CPD para. 13 at 3. Such a protest
to our Office may be filed 10 days after the date on which the
required debriefing is held. 4 C.F.R. sect. 21.2(a)(2). This
exception is not applicable here, however, because RTI elected
to file an agency-level protest, which is covered by 4 C.F.R.
sect. 21.2(a)(3), which contains no exception to our timeliness
rules based upon the request and receipt of a required
debriefing. M2 Global Tech., Ltd., supra. That is, a debriefing,
required or not, does not toll the requirement that a protest be
filed within 10 days of adverse action on an agency-level
protest. Because RTI did not learn any more information at the
debriefing, given that the basis on which it has challenged the
agency's action is essentially the same as that in its
agency-level protest, its protest to our Office is untimely
filed under our Bid Protest Regulations. (RTI
Technologies, LLC, B-401075, April 15, 2009) (pdf)
Our Bid Protest
Regulations contain strict rules for the timely submission of
protests. Under these rules, a protest, of other than an alleged
apparent solicitation impropriety, must be filed no later than
10 calendar days after the protester knew, or should have known,
of the basis for protest, whichever is earlier. 4 C.F.R. sect.
21.2(a)(2) (2008). Further, a matter initially protested to the
contracting agency will be considered timely by our Office only
if the initial agency-level protest was filed within the time
limits provide by the Regulations for filing a protest with our
Office unless the contracting agency imposes a more stringent
time for filing, in which case the agency’s time for filing will
control. 4 C.F.R. sect. 21.2(a)(3). Our timeliness rules reflect
the dual requirements of giving parties a fair opportunity to
present their cases and resolving protests expeditiously without
unduly disrupting or delaying the procurement process. Dominion
Aviation, Inc.--Recon., B-275419.4, Feb. 24, 1998, 98‑1 CPD para.
62 at 3.
Here, on November 6, 2008, M2 received a detailed letter from
the Navy informing the firm that its proposal was excluded from
the competitive range and the reasons for that exclusion.
Specifically, M2 was informed that its technical rating was
unsatisfactory with high risk, based upon ratings its proposal
received under the technical approach, logistics, and management
subfactors, and specifically detailed the reasons for the Navy’s
unacceptable ratings under these subfactors. Among other things,
M2 was informed that its proposed engine design was unproven and
that it had failed to show that its proposed MEPP satisfied all
of the solicitation requirements. The Navy also informed M2 that
its proposed price was considerably higher than the independent
government cost estimate and the other offerors’ prices.
On November 7, M2 requested a pre-award debriefing, which was
telephonically provided to M2 on November 20. Thereafter, on
November 26, M2 filed an agency‑level protest with the Navy,
challenging the Navy’s technical rating of the firm’s proposal
and failure to consider M2’s “best value” solution, albeit at a
higher price. On December 11, the Navy dismissed M2’s
agency-level protest as untimely, because the protest was not
filed within 10 calendar days of the Navy’s November 6 letter to
M2, and no additional information was provided to M2 in the
Navy’s telephonic debriefing. On December 17, M2 protested to
our Office.
We agree with the Navy that the November 6 letter to M2 informed
the firm of the reasons its proposal was excluded from the
competitive range, and that a protest of that exclusion was
required to be filed within 10 calendar days of that date. In
this regard, we disagree with M2 that it could not know the
basis of its protest until its debriefing, when the firm
allegedly learned that “the Navy did not consider the ability
for a MEPP to support other Navy aircraft and the Joint Strike
Fighter as part of the ‘Best Value’ criteria in the
solicitation.” See Protester Response to Agency Dismissal
Request, Dec. 30, 2008, at 1. As explained above, M2 knew from
the November 6 letter the reasons that the Navy considered the
firm’s proposal to be technically unacceptable. The Federal
Acquisition Regulation (FAR) provides that protests filed with
the contracting agency, of other than solicitation
improprieties, must be filed no later than 10 days after the
basis of protest is known or should have been known. FAR sect.
33.103(e). Because M2’s agency-level protest was not filed until
November 26, more than 10 days from the firm’s receipt of the
November 6 letter, the agency-level protest was not timely filed
in accordance with the FAR’s timeliness rules for filing
protests with the agency. Accordingly, M2’s protest to our
Office subsequent to the firm’s agency-level protest cannot be
considered timely and is therefore dismissed. 4 C.F.R. sect.
21.2(a)(3).
We recognize that our Bid Protest Regulations provide an
exception to the general, 10-day rule for filing a protest at
GAO that challenges “a procurement conducted on the basis of
competitive proposals under which a debriefing is requested and,
when requested, is required.” 4 C.F.R. sect. 21.2(a)(2); The
Boeing Co., B-311344 et al., June 18, 2008, 2008 CPD para. 114
at 28. In those cases, where the protest is filed with our
Office with respect to any protest basis which is known or
should have been known either before or as a result of the
requested and required debriefing, the protest cannot be filed
before the debriefing date offered, but must be filed not later
than 10 days after the date on which the debriefing is held. Id.
This exception to the 10‑day rule, however, does not apply to a
protest, such as M2’s, which is filed with the agency. As noted
above, the rules for timely filing an agency-level protest are
established by the FAR, and not GAO’s Bid Protest Regulations.
Under the FAR, protests of other than alleged solicitation
improprieties are required to be filed within 10 days after the
basis of protest is known or should have been known, and the FAR
does not contain a “required debriefing” exception to this
10-day rule. See FAR sect. 33.103(e). Because, under the
circumstances presented here, the FAR contains a more stringent
time for filing a protest with the agency than that provided for
filing a protest with GAO, M2’s protest to our Office is
untimely pursuant to our Bid Protest Regulations, 4 C.F.R. sect.
21.2(a)(3). (M2 Global
Technology, Ltd., B-400946, January 8, 2009) (pdf)
Specifically,
Datamaxx argues that the scope of EAGLE, and of FC4 in
particular, is broad and ambiguous, and therefore the protester
could not have anticipated that the TISS follow-on software
development effort would be solicited as a task order under
EAGLE before the closing date for that solicitation. As support
for its position, Datamaxx argues that TSA itself did not
consider placing the TISS requirement under EAGLE until 2008, as
evidenced both by TSA’s August 2007 request that Datamaxx submit
a proposal and pricing for similar work from Datamaxx, and by
TSA planning documents, which suggest that TSA’s consideration
of EAGLE for the TISS requirement only emerged in 2008. Datamaxx
asserts that similar considerations have led our Office to
conclude that small businesses were timely in protesting
agencies’ failures to consider small business set-asides.
Protester’s Comments at 9‑10.
TSA responds that the scope of EAGLE was not vague, and
therefore Datamaxx has no basis to claim that it was unable to
file a protest against the failure to set aside TISS software
development services before the closing date for the EAGLE RFP
in November 2005. TSA argues that the specificity of the scope
of the EAGLE RFP distinguishes the present situation from LBM,
Inc. and other cases cited by Datamaxx.
DHS joins TSA in its defense of this protest, and adds that it
made significant efforts to make awards to small businesses
under the EAGLE ID/IQ multiple award program, including
coordinating the terms of the EAGLE RFP with the SBA and with
interested small businesses. DHS argues that the level of small
business competition for the EAGLE contracts, and the resulting
contract awards, demonstrate that the purposes of the Small
Business Act have been met.
In response to our Office’s request for the SBA’s views on this
protest, the SBA argues that TSA has not met its obligations
under the Small Business Act. More specifically, the SBA argues
that the FAR requires an agency to consider the suitability of
an upcoming requirement for performance by small businesses
first, while conducting acquisition planning. SBA Comments at
4-5 (citing FAR sections 10.001(a), 19.202-2, 19.502-2,
19.1305). If such planning reveals that the requirement should
be set aside for small businesses, the SBA argues that the
procuring agency must then select a procurement vehicle
consistent with the requirement for a set-aside. SBA Comments at
5. Thus, in situations where the “rule of two” is met, an agency
could properly solicit the requirement under an ID/IQ contract
only if the requirement is set aside for capable small business
contract-holders. Id. at 5. The SBA argues that procuring
agencies must not be allowed to solicit requirements on an
unrestricted basis under existing ID/IQ contracts, simply
because no small businesses hold ID/IQ contracts, or because the
small business contract-holders are not capable of performing
the particular requirement. Id. at 6.
Our Office has recognized that where ID/IQ contracts have very
broad or vague statements of work, it may place an unreasonable
burden upon potential offerors to determine whether particular
work will be acquired under a particular ID/IQ contract, and
thus whether to protest the terms of the ID/IQ contract. This
burden may be particularly problematic for small businesses. LBM,
Inc., supra, at 5 (also holding that “it is unreasonable to
require a small business that believes that one specific
acquisition should continue to be set aside for small businesses
to identify the possibility . . . that the specific, and
relatively small, acquisition it is interested in may ultimately
be transferred to the ID/IQ contracts”); see also Ocuto Blacktop
& Paving Co., B-284165, Mar. 1, 2000, 2000 CPD para. 32 at 5-6
(protest filed at time of task order for landfill capping is
timely where solicitations for ID/IQ contracts “do not provide
clear notice that the [agency] will use these contracts to
procure environmental remediation work at [particular] sites”).
Our Bid Protest Regulations contain strict rules for the timely
submission of protests. By implication where the solicitation
for the ID/IQ contract is not broad and vague, but rather, gives
clear notice of the agency’s intention to procure particular
requirements under an ID/IQ contract, any protest of those terms
of the solicitation must be filed before the solicitation
closing date. 4 C.F.R. sect. 21.2(a)(1) (2008). Our timeliness
rules reflect the dual requirements of giving parties a fair
opportunity to present their cases and resolving protests
expeditiously without unduly disrupting or delaying the
procurement process. Dominion Aviation, Inc.--Recon.,
B-275419.4, Feb. 24, 1998, 98‑1 CPD para. 62 at 3.
In our view, the terms of the EAGLE solicitation provided clear
notice to Datamaxx that software development services, like
those at issue here, would be acquired through EAGLE. We also
note that the EAGLE solicitation was posted on Fedbizopps.gov,
thus providing the public--including Datamaxx--notice of those
terms. As such, in order to be timely, any challenge to the
terms of the EAGLE solicitation had to be filed by the closing
date, November 14, 2005.
Datamaxx also argues that our Office’s decisions indicate that
it could not have filed a protest that the terms of the EAGLE
RFP improperly failed to consider a set-aside for TISS follow-on
work in November 2005, because such a protest would have been
premature, defensive, and based only on speculation that the TSA
would act contrary to law and regulation. Protester’s Comments
at 11. We disagree. As stated above, the EAGLE RFP provided
clear notice that software development services were within its
scope, and therefore a timely protest arguing that this
requirement should be reserved for small businesses would have
been neither premature nor speculative. In our view, resolving
disputes like these while the ID/IQ solicitation is open is key
to the proper functioning of the procurement system. Alleged
solicitation defects must be raised and resolved before the
closing time for submission of proposals whenever possible. To
hold otherwise would leave the scope of ID/IQ contracts open to
challenge long after the establishment of those contracts, and
would unduly disrupt and delay ordering processes that were
intended to be efficient and expeditious. (Datamaxx
Group, Inc., B-400582, December 18, 2008) (pdf)
SIS also protests
DOL’s evaluation of its staffing proposal. In this regard, the
RFP required that the proposed site manager have “a bachelor’s
degree and a minimum of three years related experience in
communications systems and business administration or five years
related experience.” The protester argues that this provision
means that the site manager must have either: (1) a bachelor’s
degree and a minimum of 3 years related experience in
communications systems and business administration, or (2) 5
years related experience. Because SIS proposed to provide a site
manager with 15 years of related professional experience, SIS
contends that it satisfied the requirement, and that the agency
improperly downgraded its staffing proposal because the site
manager did not have a bachelor’s degree.
The agency, however, reads the requirements of the RFP
differently. Under the agency’s reading of the specification,
the site manager was required to have a bachelor’s degree plus a
minimum number of years of experience--either 3 years of
experience in communications systems and business
administration, or 5 years of related experience. Because SIS
proposed a site manager who did not have a bachelor’s degree,
the agency argues that it was proper to downgrade the
protester’s staffing proposal.
While we think the agency’s interpretation of this request is
more persuasive than the protester’s, to the extent that SIS
disagrees with the agency’s interpretation of the educational
requirements required by the solicitation, we view the
solicitation as patently ambiguous. See Pitney Bowes, Inc.,
B-294868; B-294868.2, Jan. 4, 2005, 2005 CPD para. 10 at 5.
Where a solicitation contains a patent ambiguity, an offeror has
an affirmative obligation to seek clarification prior to the
first due date for responding to the solicitation following
introduction of the ambiguity into the solicitation. 4 C.F.R.
sect. 21.2(a)(1) (2008); see Dix Corp., B-293964, July 13, 2004,
2004 CPD para. 143 at 3. Where a patent ambiguity is not
challenged prior to such submissions, we will dismiss as
untimely any subsequent protest assertion that is based on an
alternative interpretation. Kellogg Brown & Root, Inc.,
B‑291769, B‑291769.2, Mar. 24, 2003, 2003 CPD para. 96 at 8;
Bank of Am., B‑287608, B‑287608.2, July 26, 2001, 2001 CPD para.
137 at 10. Our rule that protests of patent ambiguities must be
filed prior to responsive submissions is intended to facilitate
clarification of legitimate questions prior to preparation of
submissions. Pitney Bowes, Inc., supra, at 5. Since this
solicitation requirement could be read two ways--and since the
ambiguity was apparent from the face of the solicitation--SIS
may not now assert that the only permissible interpretation of
this requirement is its own. We therefore think the agency
reasonably downgraded SIS’s proposal of a site manager who lacks
a bachelor’s degree.
(Smart Innovative Solutions,
B-400323.3, November 19, 2008) (pdf)
Notwithstanding
Hart’s clear understanding of the solicitation’s facility
clearance requirement, as enunciated in the November 7
amendment, Hart submitted a proposal responding to the
solicitation on or before the solicitation’s November 13 closing
date. On November 17, Hart filed this protest with our Office,
challenging the agency’s actions prior to issuance of the
solicitation amendment.
Under our Bid Protest Regulations, protests based upon alleged
improprieties in a solicitation which are apparent prior to the
time set for submission of initial proposals must be filed
before that time. Where alleged improprieties are subsequently
incorporated into a solicitation, protests must be filed prior
to the time set for the next submission of proposals following
the incorporation. 4 C.F.R. sect. 21.2(a)(1) (2008).
Here, Hart’s protest fails to comply with our timeliness
requirements. As noted above, Hart was notified on November 7 of
the amended requirement for a facility clearance. Further, at
that time, Hart was aware of the agency’s prior responses to
questions regarding this matter. Finally, although Hart
expressed concern regarding the amended solicitation
requirement, as well as its dissatisfaction with the agency’s
prior responses, Hart did not protest those matters prior to the
November 13 closing time; rather, Hart submitted its proposal
responding to the solicitation. On this record, Hart’s November
17 protest to this Office is not timely filed. (Hart
Security Limited, B-400796.2, December 16, 2008) (pdf)
PUBLIC-PRIVATE COMPETITION
Gentex asserts that, once FPI submitted a proposal, DSCP was
required to comply with the requirements of OMB Circular A-76
governing public-private competitions by, among other things,
conducting a cost analysis and providing notice to other
offerors that FPI was competing. See Federal Acquisition
Regulation (FAR) sect. 7.302(b)(2). In related arguments, Gentex
alleges that FPI enjoys various competitive advantages over
commercial concerns, such as exemption from taxes; is not bound
by minimum wage and other regulatory requirements applicable to
the private sector; and ultimately is not contractually bound to
perform, since an agreement between an agency and FPI is in the
form of an intragovernmental transfer. Thus, Gentex asserts, the
agency was required to “level the playing field.”
Our Bid Protest Regulations contain strict rules for the timely
submission of protests. They specifically require that a protest
based upon alleged improprieties in a solicitation that are
apparent prior to the closing time for receipt of initial
proposals be filed before that time. 4 C.F.R. sect. 21.2(a)(1)
(2008). Gentex asserts that it could not raise this protest
ground until it knew of FPI’s participation in the procurement.
We do not agree. The acquisition of supplies from FPI is
authorized by statute (18 U.S.C. sect. 4124; 10 U.S.C. sect.
4210n) and regulation (FAR sect. 8.602). These authorities make
the purchase of FPI supplies mandatory where, after market
research, the agency determines that the FPI items are
comparable to private sector items in terms of price, quality,
and time of delivery. FAR sect. 8.602(a)(3). If the item is not
found to be comparable, agencies are to acquire items meeting
their needs through competitive procedures and to include FPI in
the solicitation process. FAR sect. 8.602(a)(4)(i), (ii). Based
on these statutes, the FAR, and FPI’s catalog of items--which
includes helmets--Gentex was on ample notice that FPI was a
potential competitor for this requirement. Gentex also was or
should have been aware that the RFP did not make any provision
for application of OMB Circular A-76 procedures in the event an
FPI proposal was received. Thus, to the extent Gentex believes
the A-76 procedures were applicable, it was or should have been
aware of this protest ground prior to the closing time for
receipt of proposals. Since its protest on this ground was
raised after award, it is untimely and we will not consider it.
(Gentex Corporation, B-400328;
B-400328.2, September 23, 2008) (pdf)
We conclude that the above issues are untimely and therefore not
for consideration by our Office. Our Bid Protest Regulations
contain strict rules for the timely submission of protests.
These timeliness rules reflect the dual requirements of giving
parties a fair opportunity to present their cases and resolving
protests expeditiously without disrupting or delaying the
procurement process. Peacock, Myers & Adams, B‑279327,
Mar. 24, 1998, 98-1 CPD para. 94 at 3-4; Professional Rehab.
Consultants, Inc., B-275871, Feb. 28, 1997, 97-1 CPD para.
94 at 2. Under these rules, a protest based on alleged
improprieties in a solicitation that are apparent prior to
closing time for receipt of proposals must be filed before that
time. 4 C.F.R. sect. 21.2(a)(1) (2008). Where alleged
improprieties do not exist in the initial solicitation, but are
subsequently incorporated into the solicitation (e.g., via an
amendment to the solicitation), they must be protested not later
than the next closing time for receipt of proposals following
the incorporation. Id.; see Cessna Aircraft Co.,
B-261953.5, Feb. 5, 1996, 96-1 CPD para. 132 at 16.
Here, as discussed above, the solicitation clearly stated that
heating the clay would be the method used to prepare the clay
for testing and that proper consistency or plasticity of the
clay would be determined based upon whether the clay passed drop
testing as described in the solicitation. In fact, as noted
above, the agency issued an amendment which clearly placed
offerors on notice of its intended testing procedures. With
regard to the actual drop testing methodology, the solicitation
specified that the clay would be conditioned to a point such
that drop tests resulted in a depression of 25 mm. While
Armorworks now contends that these procedures and testing
methods were inherently unreliable and deviated from industry
practice, it was incumbent upon Armorworks to raise these issues
before the RFP closed since the alleged problems were apparent
from the face of the solicitation. Knit-Rite, Inc., B-293088.3,
Aug. 5, 2004, 2004 CPD para. 159 at 3-4 n.4.
We also find Armorworks’ challenge to the agency’s use of the
intended point of aim measure to evaluate back face deformation
to be an untimely challenge to the solicitation; however, a
different timeliness rule applies with regard to this argument.
As noted above, where an alleged solicitation impropriety is
incorporated into the solicitation--e.g., by an amendment, as in
this case--after proposals have already been submitted, that
impropriety must be protested before the next closing time
established for submitting proposals. This rule, however, is
silent regarding a situation where the agency does not provide
an opportunity to submit revised proposals as a consequence of
the solicitation change. That, however, is the situation here.
After offerors had submitted their proposals and PDMs for
ballistics testing, AMC, on April 17, issued Amendment 14, “as a
clarification” regarding how the agency intended to measure back
face deformation. Amendment 14 expressly stated that back face
deformation “will be measured at the point of intended impact
following impact.” This amendment clearly put Armorworks on
notice of how the agency intended to measure and test back face
deformation, but did not provide offerors with an opportunity to
revise their proposals in any way. In our view, to the extent
Armorworks believed that the agency’s testing methodology was
flawed, Armorworks was obligated to protest this issue, which
concerns the fundamental ground rules of the procurement, within
10 days of receiving the April 17 amendment.
In applying the 10-day rule, we find instructive those cases
where a solicitation defect only became apparent after the
closing date for receipt of proposals and we held that the
alleged impropriety had to be protested not later than 10 days
after the defect became apparent. See LBM, Inc.,
B-290682, Sept. 18, 2002, 2002 CPD para. 157 at 6-7; N&N
Travel & Tours, Inc. et al., B-285164.2, B-285164.3, Aug.
31, 2000, 2000 CPD para. 146 at 7; Ocuto Blacktop & Paving
Co., Inc., B-284165, Mar. 1, 2000, 2000 CPD para. 32 at 6;
Vitro Servs. Corp., B-233040, Feb. 9, 1989, 89-1 CPD para. 136
at 3 n.1. These cases are similar to the situation at hand since
they define the timeframe for protesting a solicitation
impropriety where the solicitation closing date has passed.
Since Armorworks waited until after it learned of its
elimination from the competition, several months after the
agency issued the clarifying amendment, to challenge the
application of that amendment, its protest allegation is
untimely and not for consideration by our Office.
One could argue--although Armorworks has not in fact made this
argument--that, under our Bid Protest Regulations, Armorworks’
protest is timely since it was filed within 10 days of its
debriefing. Pursuant to our Regulations, all protests other than
solicitation improprieties must be filed not later than 10 days
after the basis of protest is known or should have been known,
with the exception of protests challenging a procurement
conducted on the basis of competitive proposals, as in this
case. In such cases, our Regulations expressly provide that “any
protest basis which is known or should have been known either
before the debriefing or as a result of the debriefing . . .
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.” 4 C.F.R. sect.
21.2(a)(2).
Since Armorworks’ basis of protest concerns the incorporation of
a solicitation impropriety through an amendment, and the agency
did not establish a time for the submission of revised
proposals, there might be some question as to whether the
debriefing timeliness rules should apply since they broadly
apply to “any basis of protest,” including those known before
the debriefing.
As noted above, our timeliness rules reflect the dual
requirements of giving parties a fair opportunity to present
their cases and resolving protests expeditiously without unduly
disrupting or delaying the procurement process. More
specifically, underlying our timeliness rules regarding
solicitation improprieties is the principle that challenges
which go to the heart of the underlying ground rules by which a
competition is conducted, should be resolved as early as
practicable during the solicitation process, but certainly in
advance of an award decision if possible, not afterwards.
Continental Staffing, Inc., B-299054, Jan. 29, 2007, 2007 CPD
para. 18 at 4-5. Such a rule promotes fundamental fairness in
the competitive process by preventing an offeror from taking
advantage of the government as well as other offerors, by
waiting silently only to spring forward with an alleged defect
in an effort to restart the procurement process, potentially
armed with increased knowledge of its competitors’ position or
information. Blue & Gold, Fleet, L.P. v. United States,
492 F.3d 1308, 1313-14 (Fed. Cir. 2007). It also promotes
efficiency by ensuring that concerns regarding a solicitation
are raised before contractor and government resources are
expended in pursuing and awarding the contract, thus avoiding
costly and unproductive litigation after the fact. Id.
The purpose of the exception to the timeliness rules for
negotiated procurements, on the other hand, is to encourage
offerors to seek, and contracting agencies to give, early and
meaningful debriefings prior to the offeror’s deciding whether
or not to file a protest and to preclude strategic or defensive
protests--i.e., protests filed before actual knowledge that a
basis for protest exists or in anticipation of improper actions
by the contracting agency. The Real Estate Center,
B-274081, Aug. 20, 1996, 96-2 CPD para. 74 at 2.
Because Armorworks’ allegations clearly concern the terms of the
solicitation as established by the agency and therefore
implicate the fundamental ground rules of the procurement,
issues which were apparent to Armorworks before its elimination
from the competition, its protest allegation implicates the
policy considerations attendant to the solicitation impropriety
timeliness rules outlined above, as opposed to those associated
with the debriefing rules. We therefore find it appropriate in
this case to apply the solicitation impropriety timeliness
rules, consistent with our decisions holding that solicitation
defects not apparent before the solicitation’s closing date must
be protested not later than 10 days after the defect becomes
apparent, and we expressly decline to apply the debriefing
timeliness rules under these circumstances. (Armorworks
Enterprises, LLC, B-400394; B-400394.2, September 23, 2008)
(pdf)
On September 2, the agency issued RFQ No. W912TF-08-T-0025 as a
small business set-aside, again seeking to acquire the exercise
room equipment. Among, other things, the solicitation stated:
“Quotes are due: 8:00 AM on Monday, 8 September 2008.” RFQ at 3.
The agency states, and FitNet does not dispute, that FitNet did
not submit a quotation responding to the most recent
solicitation for the exercise room equipment. Rather, FitNet
submitted a protest to our Office challenging the agency’s
issuance of this solicitation.
Our Office’s business hours are from 8:30 a.m. to 5:30 p.m.,
eastern time. However, FitNet delayed submission of its protest
until after the close of business on Friday, September 5;
instead it transmitted the protest to our Office shortly before
6:30 a.m. on Monday, September 8.
Our Bid Protest Regulations contain strict rules for the timely
submission of protests. They specifically require that a protest
based upon alleged improprieties in a solicitation that are
apparent prior to the closing time for receipt of initial
proposals be filed before that time. 4 C.F.R. sect. 21.2(a)(1)
(2008). Our timeliness rules reflect the dual requirements of
giving parties a fair opportunity to present their cases and
resolving protests expeditiously without unduly disrupting or
delaying the procurement process. Dominion Aviation,
Inc.--Recon., B-275419.4, Feb. 24, 1998, 98‑1 CPD para. 62 at 3.
We have held that, when a protest is transmitted to our Office
(either by e-mail or fax) outside of business hours, we will
consider the protest to have been filed at the time our Office
next opens for business following receipt of the submission.
Guam Shipyard, B-294287, Sept. 16, 2004, 2004 CPD para. 181 at
2. Here, as discussed above, FitNet’s protest was filed after
the closing time established for submission of quotations.
Accordingly, the protest is untimely. (FitNet
Purchasing Alliance, B-400553, September 24, 2008) (pdf)
Award Without Discussions Based on Initial Quotes
DNAR argues that the agency could not properly reaward this
contract without holding discussions with DNAR--as it did with
NeuStar prior to the initial award decision--and without
allowing DNAR to submit a revised proposal addressing certain
weaknesses identified by the agency during the debriefing DNAR
received after the initial award decision. Alternatively, DNAR
argues that the agency could not properly ignore the discussions
that took place with NeuStar during the initial competition.
Both the agency and the intervenor argue that these contentions
are untimely at this juncture because DNAR has long been on
notice that the agency was not planning to hold discussions. We
agree.
In general, a protest based upon alleged improprieties in a
solicitation that are apparent prior to the closing time for
receipt of initial quotes or proposals must be filed before that
time. Bid Protest Regulations, 4 C.F.R. sect. 21.2(a)(1) (2008);
see also Continental Staffing, Inc., B- 299054, January 29,
2007, 2007 CPD para. 18 at 4-5. We think this protest issue,
which challenges the way in which the agency will conduct its
corrective action and recompetition, is analogous to a challenge
to the terms of a solicitation.
As described above, the February 6 letter from the agency to
DNAR expressly identified the information the protester should
submit for agency review during the reevaluation. Specifically,
the letter explained that: “Pursuant to [the] corrective action
[DOC] is undertaking in the referenced solicitation, I request
that you provide the Afilias 2005-2006 Financial Statements . .
. Also, please send a copy of your entire proposal dated July
30, 2007.” AR, Tab 13, Letter from DOC to DNAR, Feb. 6, 2008.
The letter nowhere mentions the possibility that the agency will
open discussions, or seek additional submissions.
DNAR received this letter already knowing certain facts about
the initial round of this procurement. For example, DNAR knew
that the agency had engaged in discussions with NeuStar during
the initial competition; in fact, DNAR raised this issue in its
initial protest to our office. Protest, Nov. 13, 2007, at 8 (“[A]t
the same time NTIA was eliminating DNAR from the competitive
range . . . NTIA allowed NeuStar to revise its proposal to
correct its marketing approach.”). DNAR also knew from its
November 7, 2007, debriefing that the agency had identified
certain weaknesses in its quote--and it could reasonably deduce
that these weaknesses were not likely to be addressed by the
resubmission of its original quote. In addition, the February 6
letter invited DNAR to submit the financial statements it had
omitted previously, but did not invite further revisions to its
quote. These things together strongly suggest DNAR knew, or
certainly should have known, that the agency would complete its
reevaluation without holding discussions--thus, providing the
basis for protest prior to award.
While the protester argues that the February 6 letter was
insufficient to put DNAR on notice that the agency’s corrective
action would not include an opportunity for discussions, we need
not reach this issue because the exchange between DNAR and the
agency on April 14 should have removed all doubt. Specifically,
DOC advised counsel for DNAR that the agency intended to “award
by the end of the month.” See Email from DOC to DNAR Counsel,
Apr. 14, 2008. In response, DNAR expressed its concerns about
this issue in emails dated April 18 and April 25. These emails,
quoted above, expressly argued that the agency should be holding
discussions with DNAR (and hence giving it an opportunity to
revise its proposal), before making a new selection decision.
Nothing the agency said in response, including its eventual
silence, can be construed as accepting DNAR’s view on this
matter.
On this record, we think DNAR knew or should have known that the
agency did not intend to hold discussions with DNAR, and, under
the circumstances here, we think that DNAR could not reasonably
await the agency’s second award decision without raising any
challenge. Consequently, we conclude that the protester’s
allegations regarding the agency’s decision not to hold
discussions with DNAR, and to proceed with award to NeuStar
without remedying the fact that agency held discussions with
NeuStar during the earlier round of this procurement, are
untimely.
To the extent the protester also argues that the agency could
not disregard the discussions that were conducted with NeuStar
in the earlier round of this procurement, we disagree.
Contracting officials in negotiated procurements have broad
discretion to take corrective action where the agency determines
that such action is necessary to ensure fair and impartial
competition. Patriot Contract Servs. LLC et al., B-278276.11 et
al., Sept. 22, 1998, 98-2 CPD para. 77 at 4. An agency’s
discretion in the area of corrective action extends to deciding
the scope of proposal or quote revisions, and there are
circumstances where an agency may reasonably decide to limit the
revisions offerors may make to their proposals or quotes. See,
e.g., Computer Assocs. Int’l, B-292077.2, Sept. 4, 2003, 2003
CPD para. 157 at 5. Here, we think the agency’s actions
reasonably addressed the advantage provided to NeuStar as a
result of the earlier discussions. (Domain
Name Alliance Registry, B-310803.2, August 18, 2008) (pdf)
Prior to the submission of the agency’s report,
the Air Force and Northrop Grumman requested that we summarily
dismiss a substantial portion of Boeing’s protest as untimely.
The agency and intervenor argued that some of Boeing’s protest
grounds were untimely challenges to alleged, apparent
solicitation improprieties. They also argued that some of
Boeing’s challenges to the agency’s evaluation of proposals were
untimely because Boeing was allegedly aware of the bases of
these protest grounds during the competition, but did not
protest until after award and the firm’s receipt of a post‑award
debriefing.
Our Bid Protest Regulations contain strict rules for the timely
submission of protests. These timeliness rules reflect the dual
requirements of giving parties a fair opportunity to present
their cases and resolving protests expeditiously without
disrupting or delaying the procurement process. Peacock, Myers &
Adams, B‑279327, Mar. 24, 1998, 98-1 CPD para. 94 at 3-4;
Professional Rehab. Consultants, Inc., B-275871, Feb. 28, 1997,
97-1 CPD para. 94 at 2. Under these rules, a protest based on
alleged improprieties in a solicitation that are apparent prior
to closing time for receipt of proposals must be filed before
that time. 4 C.F.R. sect. 21.2(a)(1). Protests based on other
than alleged improprieties in a solicitation must be filed not
later than 10 days after the protester knew or should have known
of the basis for protest, whichever is earlier. 4 C.F.R. sect.
21.2(a)(2). Our regulations provide an exception to this general
10-day rule for a protest that challenges “a procurement
conducted on the basis of competitive proposals under which a
debriefing is requested and, when requested, is required.” Id.
In such cases, as here, with respect to any protest basis which
is known or should have been known either before or as a result
of the requested and required debriefing, the protest cannot be
filed before the debriefing date offered, but must be filed not
later than 10 days after the date on which the debriefing is
held. Id.; see Bristol-Myers Squibb Co., B‑281681.12,
B-281681.13, Dec. 16, 1999, 2000 CPD para. 23 at 4.
We did not, and do not now, agree with the Air Force and
Northrop Grumman that Boeing’s protest is a challenge to the
ground rules established by the RFP for this procurement. We
find that Boeing, rather than objecting to any of the RFP’s
requirements or evaluation criteria, is instead protesting that
the Air Force failed to reasonably evaluate proposals in
accordance with the RFP’s identified requirements and evaluation
criteria. We also do not agree with the agency and intervenor
that, because Boeing was informed during the competition of the
agency’s view of the merits of its proposal and/or how the
proposals were being evaluated, Boeing was required to protest
the agency’s evaluation or evaluation methodology prior to award
and to the protester’s receipt of its required debriefing. Even
where the protester is apprised of agency evaluation judgments
with which it disagrees or where it believes the evaluation is
inconsistent with the solicitation’s evaluation scheme, our Bid
Protest Regulations require that these protest grounds be filed
after the receipt of the required debriefing.[41] See 4 C.F.R.
sect. 21.2(a)(2); see also 61 Fed. Reg. 39039, 39040 (July 26,
1996) (“to address concerns regarding strategic or defensive
protests, and to encourage early and meaningful debriefings,” a
protester shall not file an initial protest prior to its
required debriefing); Rhonda Podojil--Agency Tender Official,
B‑311310, May 9, 2008, 2008 CPD para. 94 at 3 (application of
debriefing exception to A‑76 competitions conducted on the basis
of competitive proposals).
(The
Boeing Company, B-311344; B-311344.3; B-311344.4;
B-311344.6; B-311344.7; B-311344.8; B-311344.10; B-311344.11,
June 18, 2008) (pdf)
Our timeliness rules reflect the dual requirements of giving
parties a fair opportunity to present their cases and resolving
protests expeditiously without unduly disrupting or delaying the
procurement process. Air Inc.--Recon., B-238220.2, Jan. 29,
1990, 90-1 CPD para. 129 at 2. In order to prevent these rules
from becoming meaningless, exceptions are strictly construed and
rarely used. Id. The “good cause” exception is limited to
circumstances where some compelling reason beyond the
protester’s control prevents the protester from filing a timely
protest. Dontas Painting Co., B-226797, May 6, 1987, 87-1 CPD
para. 484 at 2. The significant issue exception is limited to
untimely protests that raise issues of widespread interest to
the procurement community, and which have not been considered on
the merits in a prior decision. Schleicher Cmty. Corps. Ctr.,
Inc., B-270499.3 et al., Apr. 18, 1996, 96-1 CPD para. 192 at 7.
Here, Goel has offered no compelling reason for its failure to
protest prior to bid opening, thus the “good cause” exception
has no application. We also see nothing in the record to suggest
that Goel’s protest issue is of widespread interest to the
procurement community warranting its resolution in the context
of an otherwise untimely protest. As a consequence, we decline
to address this protest issue here.
(Goel Services, Inc.,
B-310822.2, May 23, 2008) (pdf)
While, as discussed above, our Bid
Protest Regulations provide that a protest to our Office filed
within 10 days after resolution of an agency-level protest is
timely, even when this is after the closing date, that protest
must raise the same issue as the agency-level protest. A protest
raising a new issue cannot claim the benefit of the earlier
agency-level protest for timeliness purposes. See, e.g.,
Rochester Optical Mfg. Co., B- 292137.2, Mar. 16, 2004, 2004 CPD
para. 120 at 4 n.3 (protest filed within 10 days of decision on
agency-level protest is untimely where protest is filed after
closing date and raises a new issue). Therefore, MTC’s April 10
agency-level protest, which did not raise the set-aside issue,
has no bearing on the timeliness of this protest, and cannot
provide a vehicle for viewing MTC’s protest here as timely. (Masai
Technologies Corporation, B-400106, May 27, 2008) (pdf)
Our Bid Protest Regulations contain strict rules for the timely
submission of protests. These timeliness rules reflect the dual
requirements of giving parties a fair opportunity to present
their cases and resolving protests expeditiously without
disrupting or delaying the procurement process. Professional
Rehab. Consultants, Inc., B-275871, Feb. 28, 1997, 97-1 CPD para.
94 at 2. Under these rules, a protest such as the ATO’s, based
on other than alleged improprieties in a solicitation, must be
filed not later than 10 days after the protester knew or should
have known of the basis for protest, whichever is earlier. 4
C.F.R. sect. 21.2(a)(2) (2007). An exception to this general
rule is a protest that challenges “a procurement conducted on
the basis of competitive proposals under which a debriefing is
requested and, when requested, is required.” Id. 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
protest must be filed not later than 10 days after the date on
which the debriefing is held. The MIL Corp., B-297508,
B-297508.2, Jan. 26, 2006, 2006 CPD para. 34 at 5.
In addressing the timeliness of the ATO’s protest, we first turn
to the question of when the ATO knew or should have known the
basis for protest. In this regard, the ATO argues that in
evaluating the technical proposal of the agency tender, the Army
deviated from the RFP’s evaluation factors and subfactors, which
established the requirements of acceptability. Specifically, the
protester alleges that during discussions, the Army made clear
that, in order to be found technically acceptable, the agency
tender was required to increase its staffing to meet performance
standards exceeding those set forth in the RFP. The ATO
generally alleges that the increase in costs associated with
meeting these higher standards resulted in the agency tender
having a higher adjusted price than that of Sodexho’s proposal.
Protest at 1, 3. Since the allegedly higher standards were
conveyed by the Army through discussions, the ATO knew or should
have known that the Army’s imposition of allegedly higher
standards had a prejudicial effect when she learned the results
of the cost comparison on February 12, indicating that Sodexho
had prevailed based on price. The protest, however, was not
filed until March 3, more than 10 days after February 12.
Therefore, in order for the ATO’s protest to be timely, it must
fall within the debriefing exception noted above. As stated
previously, this exception applies only where the debriefing
provided is in connection with “a procurement conducted on the
basis of competitive proposals under which a debriefing is
requested and, when requested, is required.” 4 C.F.R. sect.
21.2(a)(2). In addressing this question, we note that the term
“competitive proposals” is not defined by our Bid Protest
Regulations, nor by statute or regulation. See Systems Plus,
Inc. v. United States, 68 Fed. Cl. 206 (2005); The MIL Corp.,
supra, at 6. However, we have previously determined that the use
of negotiated procedures in accordance with Federal Acquisition
Regulation (FAR) Part 15 and as evidenced by the issuance of an
RFP, constitutes a procurement conducted on the basis of
competitive proposals for purposes of this exception to our
timeliness rules. The MIL Corp., supra; Professional Rehab.
Consultants, Inc., supra. Here, consistent with the A-76
competition process, the Army expressly incorporated and used
FAR Part 15 procedures as the framework for the A-76
competition. In this regard, pursuant to the competition process
established by the Circular, the Army issued a solicitation
seeking “proposals” (the RFP), which provided for a
lowest‑priced, technically acceptable source selection in
accordance with FAR sect. 15.101-2. The Army held discussions
with the protester and private-sector offerors in accordance
with FAR sect. 15.306, which resulted in revisions to the agency
tender and private-sector proposals consistent with FAR sect.
15.307, and after announcing the results of the cost comparison,
consistent with FAR Part 15, the Army provided the protester and
Sodexho, at their request, with debriefings. As a consequence,
we conclude that the A-76 competition here was conducted on the
basis of “competitive proposals.”
The next question is whether the debriefing was a “required”
debriefing for the purpose of applying our timeliness rules. In
this regard, when a contract is awarded on the basis of
“competitive proposals,” 10 U.S.C. sect. 2305(b)(5)(A),
implemented through FAR sect. 15.506(a)(1), provides that “an
unsuccessful offeror, upon written request received by the
agency within 3 days after the date on which the unsuccessful
offeror receives the notification of the contract award, shall
be debriefed and furnished the basis for the selection decision
and contract award.” The agency and intervenor argue that the
debriefing which the contracting officer provided the ATO here
was not a “required” debriefing for several reasons. Both point
to the fact that the Circular does not reference the type of
required debriefing contemplated by FAR sect. 15.506, but merely
requires agencies to offer a debriefing “in accordance with FAR
sect. 15.503,” which pertains solely to award notice
requirements for unsuccessful offerors. OMB Cir. A-76, Attach. B
para. D.6.d; FAR sect. 15.503 Notifications to Unsuccessful
Offerors. The intervenor further argues that the ATO’s
debriefing was not required because such debriefings are limited
to “offerors,” and the ATO is not an “offeror.” In support of
this contention, the intervenor notes that the ATO cannot be an
offeror, since if the agency tender were to prevail in the
competition, it would not result in the award of a contract,
citing our decision in Dan Duefrene et al., B-293590.2 et al.,
Apr. 19, 2004, 2004 CPD para. 82 at 5. The intervenor and the
agency further argue that, even if the possibility of a required
debriefing existed, the debriefing provided to the ATO would not
qualify, since it was not timely requested. In addressing the
specific question of whether the debriefing at issue was a
required debriefing for the purpose of establishing timeliness,
we first address the general assertion by the agency and the
intervenor that debriefings are not required in the context of
an A-76 competition. We reject this contention for the simple
reason that the statutory debriefing requirements established by
10 U.S.C. sect. 2305(b) and FAR Part 15 hinge on whether an
agency is making an award on the basis of “competitive
proposals.” Where an agency makes its selection decision under
an A-76 competition on the basis of “competitive proposals,” as
in this case, we think that the statutory and regulatory
debriefing scheme is invoked, notwithstanding the more limited
debriefing guidance set forth in the Circular.
Turning to the question of whether the public-sector competitor
in an A-76 competition can rely on the debriefing exception to
our timeliness rules for the purpose of establishing the
timeliness of its protest at our Office despite the fact that it
is not technically an “offeror,” we note that the standing of
the public-sector competitor to protest public-private
competitions conducted pursuant to A-76 has a lengthy history.
In addressing the various issues in this regard, GAO has
consistently recognized the importance of establishing, in the
conduct of A-76 competitions, a level playing field between
public and private-sector competitors, a principle unanimously
agreed to by the Congressionally-chartered Commercial Activities
Panel. Commercial Activities Panel, Final Report: Improving the
Sourcing Decisions of the Government (Apr. 2002) at 10 (stating
“[t]he Panel believes that in order to promote a more level
playing field on which to conduct public-private competitions,
the government needs to shift . . . to a FAR-type process under
which all parties compete under the same set of rules”).
Consistent with this principal, it is our intent to apply our
timeliness rules to public‑ and private-sector protesters of
A-76 competitions in an even-handed manner. As a consequence,
where an agency conducts an A-76 competition on the basis of
competitive proposals, as in this case, thereby triggering the
debriefing requirements established by statute and the FAR, we
will interpret those provisions as applying equally to
public-sector competitors for the purpose of invoking the
debriefing exception to our timeliness rules. For the same
reason, however, when protesting the results of an A-76
competition, in order to fall within the debriefing exception to
our timeliness rules, a public-sector competitor, like its
private-sector counterpart, will be held to compliance with the
rules necessary to establish its debriefing as a “required”
debriefing. As noted above, a debriefing is only required where
it is timely requested--within 3 days of receiving notice of the
award decision. In this case, the ATO’s written request for the
debriefing was made 7 days after receiving notice of the award
decision. We therefore conclude that, by its terms, the
debriefing exception does not apply. Absent application of the
debriefing exception, the ATO was required to file its protest
within 10 days of when it knew or should have known its basis of
protest; because the protest was filed more than 10 days later,
it is untimely. (Rhonda
Podojil--Agency Tender Official, B-311310, May 9, 2008) (pdf)
Apptis
first protests that an organizational conflict of interest (OCI)[5]
existed in connection with the evaluation due to DISA’s use of a
contractor employee, C.F.,[6] as an SSEB evaluator.
Specifically, Apptis alleges that at the time he evaluated
offerors’ proposals, C.F. was employed by Shim Enterprises,
Inc., a support services contractor for the DISA CS site in
Ogden, Utah. Shim, the protester contends, was responsible for
performing systems management for DISA at the time and location
that a service outage occurred, and for which the equipment
and/or support of Apptis’ primary subcontractor here, EMC, was
alleged to have been at fault (the so-called “Fairchild chip
issue”). Thus, Apptis asserts, Shim had a motivation to deflect
blame to EMC and avoid any responsibility it may have had for
the service outage problem that occurred. Apptis argues that
because the agency used as an evaluator an employee of a firm
that had an impermissible OCI, the agency’s evaluation of
proposals was unreasonable and the award to ViON improper. The
agency argues that Apptis’s protest regarding Shim’s alleged OCI
is untimely. In support of its position, the agency contends
that the RFP gave offerors notice of the fact that DISA planned
to utilize Shim in the evaluation. Further, DISA asserts that
the protester was aware of Shim’s role as DISA’s support
services contractor for the Ogden site, and had interacted
directly with Shim regarding the Fairchild chip failure
incident. The agency contends that because Apptis was aware of
the potential OCI involving Shim during the solicitation
process, but did not protest this issue until after the closing
time, the issue is untimely. We agree.
Our Bid Protest Regulations contain strict rules requiring
timely submission of protests. Under these rules, protests based
upon alleged improprieties in a solicitation which are apparent
prior to bid opening or the time set for receipt of initial
proposals must be filed prior to bid opening or the time set for
receipt of initial proposals. 4 C.F.R. sect. 21.2(a)(1) (2007).
Similarly, protests not based on solicitation improprieties must
be filed within 10 days after the basis of protest is known or
should have been known, whichever is earlier. 4 C.F.R. sect.
21.2(a)(2). As a general rule, a protester is not required to
protest that another firm has an impermissible OCI until after
the agency has made an award determination. REEP, Inc.,
B-290688, Sept. 20, 2002, 2002 CPD para. 158 at 1-2. A different
rule applies, however, where a solicitation informs offerors
that the agency plans to utilize the services of a third-party
contractor to assist in the evaluation of proposals, and the
protester knew or should have known, by means of due diligence,
that the nongovernmental entity may have, as alleged here,
impaired objectivity. In such cases, the protester cannot wait
until an award has been made to file its protest of an
impermissible OCI, but instead must protest before the closing
time for receipt of proposals. See Abt Assocs., Inc., B-294130,
Aug. 11, 2004, 2004 CPD para. 174 at 2. Here, the RFP expressly
identified Shim as a nongovernmental evaluator of offerors’
proposals, RFP sect. L at 57, and the protester itself indicates
that information regarding Shim’s role as DISA’s support
services contractor for the Ogden location was readily available
at Shim’s website. Protester’s Comments, Mar. 26, 2007, exh. A,
Printout of Shim Enterprise webpage. Moreover, EMC employees had
frequent and regular dealings with C.F. at the Ogden site, dealt
directly with C.F. regarding the Fairchild chip failure
incident, and were aware that C.F. was a Shim employee.
Protester’s Comments, Mar. 26, 2007, Second Decl. of J.S.; AR,
Apr. 17, 2007, exh. 1, Decl. of M.H.; exh. 2, Decl. of C.W. We
think that, given EMC’s prior work for DISA at the Ogden site,
and that EMC was Apptis’s primary subcontractor, Apptis knew or
should have known of Shim’s role as the DISA support services
contractor for the Ogden site where EMC had had the Fairchild
chip failure issue. Apptis’s failure to protest the alleged OCI
associated with Shim’s role in the evaluation of offerors’
proposals before the closing date for receipt of proposals makes
this issue untimely. (Apptis,
Inc., B-299457; B-299457.2; B-299457.3, May 23, 2007) (pdf)
As a final matter, CAMSS argues that the ASI brand name product
itself fails to meet certain salient characteristics included in
the solicitation. This ground of protest is untimely. The
purpose of a solicitation’s statement of salient
characteristics, as set out in FAR sect. 11.104(b), is to define
the minimum characteristics of the brand name product that an
alternative “equal” product must meet. Thus, by definition, the
salient characteristics should be derived from, and should
reflect, the essential characteristics that, in the agency’s
view, the brand name product possesses. Accordingly, a
contention that the solicitation-identified brand name item does
not meet the salient characteristics is an argument that the
solicitation is defective, because the solicitation represents
that the brand name product possesses the salient
characteristics listed, when, in the protester’s view, it does
not. Any alleged inconsistency between a brand name item and the
salient characteristics used to define an “or equal” product
thus must be protested prior to the closing time for receipt of
offers, or in this case, quotations--consistent with our
standard rule for raising challenges to solicitation
improprieties. 4 C.F.R. sect. 21.1(a)(1); M/RAD Corp., B-248146,
July 29, 1992, 92-2 CPD para. 61 at 3; VTEC Labs., Inc.,
B-245481, Dec. 26, 1991, 91-2 CPD para. 581 at 3.
(CAMSS Shelters, B-309784;
B-309784.2, October 19, 2007) (pdf)
Finally, K9 contends that the agency structured the evaluation,
including mileage costs and travel time, in such a manner that,
given its location, it could not realistically compete from a
price standpoint, and that its status as a disabled,
veteran-owned business was not given consideration in the
selection process. Under our Regulations, protests based on
alleged improprieties in a solicitation that are apparent prior
to the stated deadline for submitting offers must be filed
before that time. 4 C.F.R. sect. 21.2(a)(1). Here, the RFP, as
amended, clearly set forth the evaluation provisions about which
the protester complains, and the solicitation was not set aside
for service-disabled veterans. Therefore, it was apparent on the
face of the amended solicitation how the agency would evaluate
proposals, and that an offeror’s status as a service-disabled
veteran would not be a factor in the evaluation process. This
being the case, any protest by K9 challenging the evaluation
provisions had to be filed prior to the extended April 23
closing date for receipt of revised proposals. Since K9 did not
protest until June 27, its protest on these issues is untimely,
and will not be considered. (K9
Operations, Inc., B-299923, August 6, 2007) (pdf)
With that in mind, we must determine whether the ambiguity is
latent or patent since, if patent, it would have had to be
protested prior to the closing date for the submission of
proposals in order to be considered timely. Ashe Facility Servs.,
Inc., B-292218.3; B-292218.4, Mar. 31, 2004, 2004 CPD para. 80
at 11; see 4 C.F.R. sect. 21.2(a)(1). A patent ambiguity exists
where the solicitation contains an obvious, gross, or glaring
error (e.g., where the solicitation provisions appear
inconsistent on their face), while a latent ambiguity is more
subtle. Ashe Facility Servs., Inc., supra. Since Singleton’s
interpretation of the RFP did not directly conflict with any of
the other solicitation provisions, and the ambiguity came to
light in the context of the agency’s past performance
evaluation, we conclude that the ambiguity here was latent
rather than patent. Singleton’s protest is thus timely. Id. As
indicated, the agency intended the solicitation to provide that
only the offeror’s past performance, and not that of proposed
subcontractors, would be considered by the agency in evaluating
proposals and in making its source selection. The protester
states that, had it been aware prior to the closing date for the
receipt of proposals of the agency’s intended meaning, it would
have protested the propriety of that aspect of the RFP.
Protester’s Comments at 1. Given the protester’s position here,
and the indicated intent of FAR sect. 15.305(a)(2)(iii)--which
by using the term “should” advises agencies that they should
consider in their evaluations the past performance of proposed
“subcontractors that will perform major or critical aspects of
the requirement” unless they have a reasonable basis for not
doing so--the propriety of the agency’s decision not to follow
the approach advised in the FAR cannot be assumed. In our view,
there is thus a reasonable possibility that a timely protest
would have ultimately led to the agency’s adopting the FAR’s
recommended approach. Even if it did not, so that the
procurement was conducted under the agency’s current approach
(but unambiguously stated), the protester would have had an
opportunity to submit a proposal consistent with that approach.
In view of the potentially different outcome associated with
this necessarily speculative analysis, we find a reasonable
possibility that the protester was prejudiced by the agency’s
actions. (Singleton Enterprises,
B-298576, October 30, 2006) (pdf)
Our Bid Protest Regulations require that protests not
based upon alleged improprieties in a solicitation be filed not
later than 10 days after the basis of protest is known or should
have been known. 4 C.F.R. sect. 21.2(a)(2) (2005). More
specifically, a protest based upon information provided to the
protester at a statutorily-required debriefing is generally
untimely if filed more than 10 days after the debriefing. The
New Jersey & H St. Ltd. P’ship, B-288026, B-288026.2, July 17,
2001, 2001 CPD para. 125 at 2; Clean Venture, Inc., B-284176,
Mar. 6, 2000, 2000 CPD para. 47 at 4 n. 5. Here, during the
preaward debriefing, the protester was informed of the specific
critical failures upon which its bid sample reliability rating
was based, including the broken bolt critical failure which it
now challenges. Subsequent to the debriefing, however, the
agency reinstated Remington in the competitive range and
continued to consider Remington’s proposal for contract award.
It is clear, we think, that once the Army reinstated Remington’s
proposal in the competitive range of offerors to be further
considered for award, there was no agency action prior to the
award determination that was prejudicial to, and protestable by,
Remington. In fact, had Remington filed a protest here
challenging the agency’s reliability testing after being
reinstated in the competitive range and before award, the
protest would have been speculative and premature because it
would have merely anticipated prejudicial agency action. See
Computer Assocs. Int’l, Inc., B-292077.2, Sept. 4, 2003, 2003
CPD para. 157 at 4; Parcel 47C LLC, B-286324, B-286324.2, Dec.
26, 2000, 2001 CPD para. 44 at 10 n.13. Thus, we find
Remington’s protest here, filed within 10 days after Remington
was advised of the award decision, to be timely. (Remington
Arms Company, Inc., B-297374; B-297374.2, January 12, 2006)
(pdf)
Our Bid Protest Regulations contain strict rules for the
timely submission of protests. These timeliness rules reflect
the dual requirements of giving parties a fair opportunity to
present their cases and resolving protests expeditiously without
disrupting or delaying the procurement process. Peacock, Myers &
Adams, B-279327, Mar. 24, 1998, 98-1 CPD para. 94 at 3-4;
Professional Rehab. Consultants, Inc., B-275871, Feb. 28, 1997,
97-1 CPD para. 94 at 2. Under these rules, a protest such as
MIL’s, based on other than alleged improprieties in a
solicitation, must be filed not later than 10 days after the
protester knew or should have known of the basis for protest,
whichever is earlier. 4 C.F.R. sect. 21.2(a)(2) (2005). An
exception to this general rule is a protest that challenges “a
procurement conducted on the basis of competitive proposals
under which a debriefing is requested and, when requested, is
required.” Id. 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 protest must be filed not later
than 10 days after the date on which the debriefing is held. Id.
Our determination of the timeliness of MIL’s organizational
conflict of interest issues therefore involves a twofold
analysis: (1) determining when MIL knew, or should have known,
its basis for protest here; and (2) determining whether MIL’s
protest involves a procurement conducted on the basis of
competitive proposals under which a debriefing was required. We
find that MIL knew or should have known this basis for protest
as of the date it received notice of the award to Anteon,
September 29. As the incumbent IT help-desk services contractor,
MIL was fully aware of Anteon’s duties and responsibilities as
the program management services contractor with the Navy; it was
this familiarity that provided MIL with the underlying factual
basis for its assertions that Anteon both had superior access to
information during the solicitation process, and would suffer
from impaired objectivity during contract performance. Further,
the agency asserts--and MIL does not deny--that the
organizational conflict of interest issues here were not raised
or even mentioned at the debriefing provided to MIL. While the
protester now argues that “it was at the debriefing that MIL
learned that the Navy made its award to an offeror with an
apparent [organizational conflict of interest] without
evaluating the [organizational conflict of interest] and without
imposing any appropriate mitigation,” MIL Response to Agency
Dismissal Request, Nov. 7, 2005, at 5, we fail to see how MIL
could first have become aware of this as a result of the
debriefing when it asked no questions and did not even raise the
issue. Rather, we find that the facts which provided MIL with
its basis of protest here were known to it as of the September
29 award notification date. Accordingly, since MIL’s protest was
not filed until October 24, we find that MIL did not protest the
organizational conflict of interest issue within 10 days of when
the protester knew or should have known of the basis of protest.
(The MIL Corporation, B-297508;
B-297508.2, January 26, 2006) (pdf)
Where a protest initially has been filed with a
contracting activity, any subsequent protest to our
Office, to be considered timely under our Bid Protest
Regulations, must be filed within 10 days of actual or
constructive knowledge of initial adverse agency action. 4
C.F.R. sect. 21.2(a)(3). The term “adverse agency action”
is defined in our Bid Protest Regulations to include the
agency’s proceeding with the receipt of proposals in the
face of the protest. 4 C.F.R. sect. 21.0(f); Carlisle Tire
& Rubber Co., B-235413, May 12, 1989, 89-1 CPD para. 457
at 2. Thus, it is our general view that once the
contracting activity proceeds with accepting offers, the
protester is on notice that the contracting activity will
not undertake the requested corrective action;
consequently, timeliness is measured from this point
rather than from the receipt of a subsequent formal denial
of the agency-level protest. Scopus Optical Indus.,
B-238541, Feb. 23, 1990, 90-1 CPD para. 221 at 2. Since
Lifecare learned of the initial adverse agency action on
August 9, but did not file its protest with our Office
until August 22, more than 10 days later, its protest is
untimely under our Bid Protest Regulations. 4 C.F.R. sect.
21.2(a)(3). These timeliness rules reflect the dual
requirements of giving parties a fair opportunity to
present their cases and of resolving protests
expeditiously without unduly disrupting or delaying the
procurement process. Air Inc.--Recon., B-238220.2, Jan.
29, 1990, 90-1 CPD para. 129 at 2. (Lifecare
Management Partners, B-297078; B-297078.2, November
21, 2005) (pdf)
Wescam maintains that the contentions presented in its
comments are not untimely because they merely provide
further support for its general protest contentions that
the Navy improperly failed to consider its alternate
proposals and that the agency’s price evaluation was
unreasonable, and that the issues raised therefore are not
independent protest grounds. Wescam’s reliance on general
articulations of its bases of protest is misplace. Where a
protester raises a broad ground of protest in its initial
submission but fails to provide details within its
knowledge until later, so that a further response from the
agency would be needed to adequately review the matter,
these later, more specific arguments and issues cannot be
considered unless they independently satisfy the
timeliness requirements under our Bid Protest Regulations.
Biospherics, Inc., B-285065, July 13, 2000, 2000 CPD para.
118 at 12-13. In this regard, we have found supplemental
protest grounds untimely which present “examples” of flaws
in the agency’s evaluation generally alleged in the
initial protest since such staggered presentation of
“examples,” each of which involves different factual
circumstances and requires a separate explanation from the
agency, constitutes precisely the piecemeal presentation
of issues that our timeliness rules do not permit. QualMed,
Inc., B-257184.2, Jan. 27, 1995, 95-1 CPD para. 94 at
12-13. (L-3 Systems Company
Wescam Sonoma, Inc., B-297323, December 3, 2005) (pdf)
As an initial matter the Air Force argues that the
challenges relating to the December 2004 sole-source award
to OSS should be dismissed as untimely. The agency
maintains that the award was announced on December 6, 2004
on the official website for the Department of Defense,
referred to as DefenseLink --
http://www.defenselink.mil/ -- and that the protesters
should have challenged the award within 10 days of this
announcement, yet they waited more than 6 months to file
their protests. In essence, the Air Force argues that the
award announcement on DefenseLink placed the protesters on
constructive notice of the sole-source award and that the
timeliness of their protests should be measured from this
date. We disagree.In support of its contention that the
protesters were on constructive notice by virtue of the
DefenseLink posting, the Air Force points to our decisions
holding that publication in the Commerce Business Daily (CBD)
or on the FedBizOpps website (which has replaced the CBD)
placed protesters on constructive notice of an agency’s
contract actions. For example, we have recognized that
publication in the CBD of an agency’s intent to enter into
a sole-source contract constitutes constructive notice of
that proposed contract action. See Fraser-Volpe Corp.,
B‑240499 et al., Nov. 14, 1990, 90-2 CPD para. 397 at 3;
S.T. Research Corp., B-232751, Oct. 11, 1988, 88-2 CPD
para. 342 at 1. Similarly, we have held that publication
on the FedBizOpps website places prospective contractors
on constructive notice of contract awards, such that
protests of the awards must be filed within 10 days of
publication. CBMC, Inc., B‑295586, Jan. 6, 2005, 2005 CPD
para. 2 at 2. These cases, however, are inapposite. The
doctrine of constructive notice creates a presumption of
notice in law that cannot be rebutted. See, e.g., Townsend
v. Little and Others, 109 U.S. 504, 511 (1883)
(“constructive notice is defined to be in its nature no
more than evidence of notice, the presumption of which is
so violent that the court will not even allow of its being
controverted”). By definition the doctrine imputes
knowledge to a party without regard to the party’s actual
knowledge of the matter at issue. Given the severity of
such a rule, our decisions holding protesters to
constructive notice of information published in the CBD
and now on FedBizOpps have been premised on the fact that
first the CBD and now FedBizOpps have been expressly
designated by statute and regulation as the official
public medium for providing notice of contracting actions
by federal agencies. See Herndon & Thompson, B-240748,
Oct. 24, 1990, 90-2 CPD para. 327 at 3 (protesters are
charged with constructive notice of contents of
procurement synopsis published in the CBD since it is the
official public medium for identifying proposed contract
actions); see also 15 U.S.C. sect. 637(e)(2)(A) (2000); 41
U.S.C. sect. 416(a)(7) (2000); FAR sect. 2.101
(designating FedBizOpps as the governmentwide point of
entry (GPE), “the single point where Government business
opportunities greater than $25,000, including synopses of
proposed contract actions, solicitations, and associated
information, can be accessed electronically by the
public”). In this case, the Air Force did not publish its
intent to enter into a sole-source contract with OSS, nor
did it provide notice of the award on FedBizOpps; rather,
the Air Force announced the December award solely on
DefenseLink. While the agency maintains that DefenseLink
is “as widely known as FedBizOpps and as eagerly perused,”
AR, Tab 2.a., Agency’s Request for Dismissal at 2,
DefenseLink has not been designated by statute or
regulation as an official public medium for providing
notice of contracting actions. As a consequence, and in
view of the sometimes harsh consequences of application of
the doctrine, we do not treat posting on DefenseLink as
giving rise to constructive notice. (WorldWide
Language Resources, Inc.; SOS International Ltd.,
B-296984; B-296984.2; B-296984.3; B-296984.4; B-296993;
B-296993.2; November 14, 2005) (pdf)
The agency initially asserts that Sigmatech’s protest is
untimely filed. In this regard, the agency first contends
that Sigmatech knew, or should have known, its basis for
protest as early as either the February 18, 2003 "sources
sought" notice or Sigmatech’s February 24 response to that
notice. These documents, the agency argues, show that
Sigmatech knew, or should have known, that the RSJPO
services were going to be procured by TACOM under a
different contract vehicle, and thus Sigmatech should have
protested at that time. However, the "sources sought"
notice is not a solicitation, and since our Office only
hears protests of solicitations, Pancor Corp., B-234168,
Mar. 29, 1989, 89-1 CPD para. 328 at 2, Sigmatech’s
protest would have been premature at that point. Lockheed
Martin Sys. Integration--Owego, B-287190.2, B-287190.3,
May 25, 2001, 2001 CPD para. 110 at 16 n.10. The agency
next asserts that the protest is untimely because it was
not filed within 10 days of the agency’s September 23,
2003 letter that informed Sigmatech that the contract
would be competed only among FSS 871 holders. However,
Sigmatech denies receiving this letter, and in any event
the RFQ still had not been issued (it was not issued until
December 5), so a protest again would have been premature.
Id. The agency also asserts that the firm did not
diligently pursue its protest after submitting its
response to the "sources sought" notice. Had it done so,
the Army argues, Sigmatech would have discovered that the
services would be procured only through TACOM under a BPA
issued to an FSS 871 contractor, and that Sigmatech would
be ineligible to compete because it did not hold an FSS
871 contract. However, nothing in the record (other than
the September 23 letter that Sigmatech denies receiving)
indicates that Sigmatech should have known that the TACOM
BPA would be the vehicle used to procure the RSJPO
services. Indeed, as noted above, the agency did not
"release" a copy of the RFQ to Sigmatech, from which the
firm may have been able to determine a basis for protest,
or specifically notify Sigmatech that the SETA work it was
performing for RFJPO was to be "bundled" into the BPA. In
fact, even after award of the Sverdrup BPA in 2003, AMCOM
placed orders for these services with Sigmatech extending
into 2005, and recompeted the requirement. Thus, on this
record, we cannot conclude that Sigmatech’s failure to
earlier become apprised of the Army’s asserted plan to
obtain these services through the Sverdrup BPA was the
result of a lack of diligent pursuit of this information
by the protester. In this regard, we resolve doubts over
issues of timeliness in favor of protesters. See LBM,
Inc., B-290682, Sept. 18, 2002, 2002 CPD para. 157 at 7.
The record before us indicates that it was not until
February 2005 that Sigmatech was informed by telephone of
the Army’s plan to procure the SETA services solely
through the Sverdrup BPA, and subsequent written
communications from the agency during February, March, and
April suggested that this plan was not final even then. In
fact, the AMSCOM ombudsman stated as recently as April 21,
2005 that TACOM was "considering my recommendations" to
compete the requirement and include small businesses in
this competition. As he informed Sigmatech, based on his
discussions with TACOM, "I believe there is a very high
probability that they will issue a competitive RFP for the
[SETA] services--and I see no reason that Sigmatech will
be precluded from competing." Protest, attach. 9, E-mail
from AMSCOM Ombudsman to Sigmatech (Apr. 21, 2005). The
agency does not deny that TACOM was still considering
whether to compete the requirement during this time. Given
that we resolve doubts of timeliness in favor of the
protester, we cannot on this record find Sigmatech’s
protest to be untimely. The record shows that on April 29,
Sigmatech was informed in writing that the SETA services
it was currently performing were going to be performed
under the TACOM BPA effective May 1. Sigmatech protested
to our Office within 10 days of this letter, and we find
that its protest was timely filed. 4 C.F.R. sect.
21.2(a)(1) (2005). (Sigmatech,
Inc., B-296401, August 10, 2005) (pdf)
TAL also contends that the award to SVO is improper
because the solicitation, a small business set-aside,
failed to include a mandatory provision regarding
limitations on subcontracting. Specifically, the RFP
omitted the provision at Federal Acquisition Regulation
sect. 52.219-14, applicable to small business set-aside
procurements, that provides that in a contract for
services (except construction), by submission of its offer
and execution of a contract, the contractor agrees that at
least 50 percent of the cost of contract performance
incurred for personnel will be expended for the
contractor’s own personnel.
An unsuccessful offeror cannot wait until learning of an
adverse award determination to file a protest of apparent
solicitation improprieties; rather, under our Bid Protest
Regulations, to be timely, a challenge to an apparent
solicitation defect must be filed prior to the closing
time for the receipt of proposals. 4 C.F.R. sect.
21.2(a)(1) (2005). Accordingly, to the extent TAL
challenges, post-award, the omission of the subcontracting
limitation from the solicitation, the protest is untimely.
Lockheed Eng’g and Mgmt. Servs., Inc.--Recon., B-212858.2,
Feb. 14, 1984, 84-1 CPD para. 193 at 1-2. (TransAtlantic
Lines, LLC, B-296245; B-296245.2, July 14, 2005) (pdf)
As an initial matter, the Navy argues that IMP's protest
should be dismissed as untimely because IMP, by its own
admission, received the Navy's decision denying its
agency-level protest on Saturday, March 12, yet did not
file its protest with our Office until March 24, more than
10 days after receipt of the agency-level protest
decision. The protester responds that it is not open for
business on weekends, and that although a vice-president
for IMP received the envelope containing the protest
decision on March 12 and then called another principle of
the company to inform him that a letter had arrived from
the Navy, the envelope was not opened until Monday, March
14. We do not agree with the Navy that the circumstances
of this case warrant application of a rule different from
the one articulated in Supreme Edgelight. The time period
for filing a protest with our Office commences with a
protester's actual or constructive knowledge of initial
adverse agency action. As in Supreme Edgelight, there
plainly was no actual knowledge in this case. Moreover, as
we found in Supreme Edgelight, the receipt of an
agency-level protest decision on a nonbusiness day, where
the notice is not actually read, does not constitute
constructive knowledge. While the Navy correctly points
out that protesters have a duty to diligently pursue their
bases for protest, we have never held, as the Navy would
have us do here, that such a duty extends to conducting
business outside of ordinary business hours (for example,
a weekend). In addition, contrary to the Navy's argument,
the position of the individual who receives the envelope
containing the decision but leaves it unopened (whether a
clerk, a principle of the company, or anyone else) has no
bearing on whether a protester has received constructive
notice of initial adverse agency action. Thus, we find
that receipt of the agency's unopened envelope containing
the decision on Saturday did not constitute constructive
knowledge of initial adverse agency action, given that
Saturday was not an ordinary business day for the
protester. Rather, we conclude that IMP first learned of
the agency's protest decision on Monday, March 14, the
next businessday. Accordingly, IMP's protest, which was
filed within 10 calendar days of that date, is timely. (International
Marine Products, Inc., B-296127, June 13, 2005) (pdf)
VSE's initial protest of the cancellation of the RFP,
filed December 30, 2004, specifically argued that the
"Government's real agenda [in canceling the RFP] is the
status quo, perpetuating improper sole source extensions
forever or until some indefinite future time." VSE's
Initial Protest at 18-19. We find that this constitutes a
timely protest of the proposed sole-source extension of EG&G's
contract. Although the agency argues that VSE did not then
contend that the sole-source extension of EG&G's contract
was the result of a lack of advanced planning but only
untimely raised this contention in its comments on the
agency report, this contention was based upon documents
provided in the agency report on VSE's initial protest and
is thus timely raised in VSE's comments. We consider VSE's
protest of the sole-source bridge contract to be timely
filed. On the other hand, Johnson Controls' protest, which
was filed on March 11, 2005, more than 10 days after the
announcement in FedBizOpps, is untimely and is dismissed.
Johnson Controls argues that it would have been premature
for it to protest the proposed sole-source action based
upon the FedBizOpps announcement because no solicitation
for the sole-source procurement had been issued and no
sole-source justification had been prepared. However,
nothing had really changed when Johnson Controls filed its
"piggy-back" protest on March 11, 2005, in that the agency
still had not issued a solicitation or prepared a
sole-source justification. We dismiss Johnson Controls'
protest as untimely. (VSE
Corporation; Johnson Controls World Services, Inc.,
B-290452.3; B-290452.4; B-290452.5, May 23, 2005) (pdf)
Further, we do not agree that the debriefing was
essentially ongoing pending the agency's answering the
protester's October 7 questions. Although the record
indicates that NGA did not answer all of New SI's
questions at the debriefing session, and New SI maintains
that there was "no statement by any NGA representative
that the debriefing process was concluded at the end of
the October 6, 2004 meeting," Declaration of New SI Chief
Executive Officer, Nov. 5, 2004, at 2, neither was there
any affirmative indication by the agency that the
debriefing would be considered concluded only after the
agency responded to further questions the protester might
have after the October 6 session. In fact, the source
selection authority (SSA) states that the contracting
officer informed New SI at the beginning of the debriefing
that "if it had any remaining questions after the
debriefing was finished . . . New SI could submit written
questions to the Contracting Officer after the debriefing
." Declaration of SSA, Nov. 5, 2004, at 1-2 (underlining
added). It is clear from this statement that the agency
considered the debriefing "finished" at the conclusion of
the October 6 session, notwithstanding that it was willing
to answer further questions the protester might have.
Given the absence of any affirmative indication from the
agency that the debriefing would remain open after the
scheduled session, we consider it to have concluded at the
end of that session. The fact that New SI may not have
been satisfied with all aspects of the debriefing, and
that it continued to pursue certain questions with the
agency, did not extend the time for filing a bid protest
based on the information provided during the debriefing.
See Handheld Sys., Inc. , B-288036, Aug. 10, 2001, 2001
CPD 142 at 2 (protester's continued questions to the
agency following a debriefing did not extend the time for
filing a bid protest). Since New SI's protest was filed
more than 10 days after it learned of the basis for the
protest on October 6, the protest is untimely. (New
SI, LLC, B-295209; B-295209.2; B-295209.3, November
22, 2004) (pdf)
Our
Bid Protest Regulations provide that where, as here, a
protester timely files an agency-level protest, any
subsequent protest to our Office must be filed within
10 days of actual or constructive knowledge of initial
adverse agency action. 4 C.F.R 21.2(a)(3) (2004). In an
analogous case, we found that a protester's receipt on
Saturday (a non-business day) by electronic mail of the
agency's notification that the firm had been excluded from
the competitive range should be considered as received by
the protester on the next business day for the purposes of
determining whether a request for a required debriefing
was timely. See International Res. Group , B-286663, Jan.
31, 2001, 2001 CPD 35 at 5. The agency argues that our
decision in International Res. Group is inapplicable here
because that decision did not concern the computation of
time required to file a protest with our Office but only
concerned when a protester was deemed to have received
notice of its competitive range exclusion for the purposes
of requesting a required debriefing. We do not agree that
this difference distinguishes the rule stated in
International Res. Group . In either situation, the time
period for requesting a required debriefing or filing a
protest with our Office commences with a protester's
actual or constructive knowledge of initial adverse agency
action. As we found in International Res. Group , the
mechanical receipt of notice on a non-business day, where
the notice is not actually read, does not constitute
actual or constructive knowledge. With respect to receipt
outside the protester's ordinary business hours (for
example, a weekend), we find no practical difference
between by e-mail or by the protester's clerical or
security personnel for purposes of determining whether a
protester has received constructive or actual notice of
initial adverse agency action. (Supreme
Edgelight Devices, Inc., B-295574, March 4, 2005) (pdf)
The protests challenge an evaluation and source selection
process that took place between June 2000 and June 2001.
As a procedural matter, our Office's timeliness rules
generally preclude consideration of protests challenging
agency actions, such as these, that took place in the
relatively distant past. See Bid Protest Regulations,
4C.F.R. 21.2 (2004). Here, however, the protests are based
on information first obtained by the protesters in October
2004 due to the public disclosure at that time of
documents relating to Darleen Druyun's criminal conviction
and sentencing for violation of the conflict of interest
provisions codified at 18 U.S.C. 208(a) (2000). Since the
protesters had no reason to know of the information
disclosed in those documents, we view the protests as
timely. (Lockheed Martin
Aeronautics Company; L-3 Communications Integrated Systems
L.P.; BAE Systems Integrated Defense Solutions, Inc.,
B-295401, B-293401.2, B-295401.3, B-295401.4, B-295401.5,
B-295401.6, B-295401.7, B-295401.8, February 24, 2005) (pdf)
To the extent Pitney Bowes disagrees with the agencys
interpretation of the term business rules, we view the
solicitation as patently ambiguous. As noted above, an
offeror has an affirmative obligation to seek
clarification prior to the first due date for submissions
responding to the solicitation following introduction of
the ambiguity into the solicitation. 4 C.F.R. 21.2(a)(1).
Where a patent ambiguity is not challenged prior to such
submissions, we will dismiss as untimely any subsequent
protest assertion that is based on an alternative
interpretation. Kellogg Brown & Root, Inc. , supra ; Bank
of Am. , B287608, B-287608.2, July 26, 2001, 2001 CPD 137
at 10. Our rule that protests of patent ambiguities must
be filed prior to responsive submissions is intended to
facilitate clarification of legitimate questions prior to
preparation of submissions. Since Pitney Bowes sought no
clarification of this matter prior to responding to the
solicitation, it may not now assert that the only
permissible interpretation of this term is its own. (Pitney
Bowes Inc., B-294868; B-294868.2, January 4, 2005) (pdf)
Pitney Bowes first protests that the agency lacked a
proper basis to cancel the initial delivery order. Pitney
Bowes does not dispute that its submission failed to
reflect any prices for meter head bases or scales in the
option years. Nonetheless, Pitney Bowes maintains that the
RFQ only sought vendors quotations to purchase meter head
bases and scales during the base year, and that no such
purchases were contemplated during the option years. The
record is to the contrary. As noted above, the
solicitation expressly advised the vendors that they were
to complete the following pricing, that [t]he number of
units to be provided in the option years has not been
determined, and that the vendors quotations for the
option-year quantities would be used for the purpose of
evaluating bids. RFQ at 1. Accordingly, it is clear that
quotations for all line items, including option-period
line items was required. To the extent Pitney Bowes viewed
this clear solicitation requirement as either unrealistic
or otherwise contrary to other aspects of the RFQ, any
protest on that basis had to be filed prior to the time
set for submission of quotations, in order to be timely
under our Bid Protest Regulations. 4 C.F.R. 21.2(a)(1). On
this record, we find nothing improper in the agency's
cancellation of the initial delivery order issued to
Pitney Bowes. (Pitney Bowes Inc.,
B-294868; B-294868.2, January 4, 2005) (pdf)
This case presents two related questions pertaining to
timeliness. The first is whether a time/date stamp is
determinative as to the timeliness of a protest filing
where other evidence clearly establishes the time that the
protest arrived at our Office. The answer to this question
is no. While we rely upon our time/date stamp to determine
the timeliness of protest filings with our Office where
other evidence clearly establishing the time that the
protest arrived is absent, Peacock, Myers & Adams ,
B-279327, Mar. 24, 1998, 98-1 CPD 94 at 2, we will not
rely upon the stamp where other acceptable evidence of
earlier receipt is available, as was the case here. Our
fax machine printed the time and date of receipt on each
page of the protest as it was received, and these captions
establish that all 11 pages of the protest were received
at 2:42 p.m. on July 5. In addition, there is evidence (in
the form of an e-mail message confirming receipt of the
protest that was automatically generated by our computer
system at 3:22 p.m. on July 5) that Guam Shipyard sent an
e-mail copy of its protest to our Office prior to the time
set for receipt of quotations. We turn then to our second
question, which is whether we should consider a protest
transmitted to our Office by e-mail or fax outside of
business hours as filed at the time it enters our computer
system (in the case of e-mail) or is received by our fax
machine (in the case of a fax) or whether we should
consider it as filed as of the opening of business on the
following business day. We think that the answer is the
latter. While we recognize that our Regulations define the
term "days" as "calendar days," 4 CFR 21.0(e), the clear
intent behind the Regulations, read as a whole, is that
documents may be, and are considered, filed only on days
when our Office is open for business. In this regard, 4
CFR 21.0(g) states that "[a] document is filed on a
particular day when it is received by GAO by 5:30 p.m.,
eastern time, on that day," and documents filed after 5:30
p.m. are considered filed on the next business day. See ,
e.g. , Computer One, Inc.Recon. , B-249352.7, Sept. 27,
1993, 93-2 CPD 185 at 2 n.1. The reference to the 5:30
p.m. deadline has meaning only if used in the context of
business days. See Bid Protests at GAO: A Descriptive
Guide , 15 (7th ed. 2003) (GAO's office hours are from
8:30 to 5:30 p.m., eastern time, Monday through Friday).
In an analogous situation, we have held that where e-mail
notification of an offeror's exclusion from the
competitive range enters an offeror's computer system
after close of business on a weekday or on a weekend or
holiday and is not opened before the following business
day, receipt of the notice should not be considered to
have occurred until that business day. Int'l Resources
Group, B-286663, Jan. 31, 2001, 2001 CPD 35 at 5.
Similarly here, we do not consider protest-related
submissions received via e-mail or fax outside of business
hours as effectively receivedand thus filed--until the
following business day. (Guam
Shipyard, B-294287, September 16, 2004) (pdf)
As a general rule, a protester is not required to protest
that another firm has an impermissible OCI until that firm
has been selected for award. REEP, Inc. , B-290688, Sept.
20, 2002, 2002 CPD 158 at 1-2. A different rule applies,
however, where a solicitation is issued on an unrestricted
basis, the protester is aware that a potential offeror has
participated in developing the project and is
participating in the competition, and the protester has
been advised by the agency that it considers the potential
offeror eligible for award. International Sci. and Tech.
Inst., Inc. , B-259648, Jan. 12, 1995, 95-1 CPD 16 at 3-4;
see CDR Enters., Inc. , B-293557, Mar.26, 2004, 2004 CPD
46 at 3 n.1. In such cases, the protester cannot wait
until an award has been made to file its protest, but
instead must protest before the closing date for receipt
of proposals. International Sci. and Tech. Inst., Inc. ,
supra . Here, the assessment prepared by TCGI--which
clearly showed the extent of the firm's prior involvement
in the program--was included in the solicitation. Further,
it is clear that Abt knew both that TCGI was participating
in the procurement and that the agency did not consider
TCGI to have an OCI that precluded it from receiving the
award. Under these circumstances, Abt's protest is
untimely because it was not filed prior to the closing
date for receipt of proposals. International Sci. and
Tech. Inst., Inc. , supra . (Abt
Associates, Inc., B-294130, August 11, 2004) (pdf)
In requesting reconsideration, AMI claims that the
late-December conversation conveyed to AMI only that PTBS
had filed a complaint alleging that it should have
received award after application of the 10-percent
preference, and that the agency was imposing a stop-work
order until a decision could be made, which would be made
known to AMI at that time. According to AMI, it became
aware that the agency had made a final determination to
terminate the Good Housekeeping portion of AMI's contract
only when it received the amendment/modification to that
effect on January 7, and that the timeliness period
therefore should commence on that date, making the January
13 agency protest timely. Our original decision found that
the stop-work order plus the contracting officer's
explanation that application of the 10-percent preference
could result in the contract going to PTBS gave AMI
sufficient information to file a protest. On reflection,
however, and in light of our rule that doubt as to when a
protester became aware of its basis for protest should be
resolved in favor of the protester, Metro Monitoring Servs.,
Inc. , B-274236, Nov. 27, 1996, 96-2 CPD 204 at 4, we have
decided that AMI should be given the benefit of the doubt
about the content of the conversation with the contracting
officer. While the information given to AMI in late
December clearly conveyed that the Good Housekeeping
portion of its contract was in jeopardy, we are willing to
assume, for purposes of determining timeliness of the
subsequent protest, that the agency left AMI with reason
to believe that a final determination had yet to be made.
When a firm has been notified that the agency is
considering taking an action adverse to the firm's
interests, but has not made a final determination, the
firm need not file a defensive protest, since it may
presume that the agency will act properly. See Haworth,
Inc.; Knoll North America, Inc. , B-256702.2, B-256702.3,
Sept. 9, 1994, 94-2 CPD 98 at 4-5; Tamper Corp. ,
B-235376.2, July 25, 1989, 89-2 CPD 79 at 2; Dock Express
Contractors, Inc. , B-227865.3, Jan. 13, 1988, 88-1 CPD 23
at 6. (American Multi Media,
Inc.--Reconsideration, B-293782.2, August 25, 2004) (pdf)
As an initial matter, the protester’s allegation that the
agency improperly failed to make a cost/technical
tradeoff, including crediting Dix with superior
experience, is an untimely protest of an ambiguity
apparent on the face of the RFQ. Although RFQ, at section
3-7, included language consistent with making a “best
value” selection, such as the relative weights of
evaluation factors, suggesting that the agency would
conduct a cost/technical tradeoff if necessary, that
section of the RFQ also stated that “[i]t is the
Government’s intent to award to the offeror who receives a
Satisfactory or better rating in sub-factors 1, 2, 3, and
4, and who has the lowest price.” RFQ § 3-7(a)(1). As the
protester itself acknowledges, these provisions are in
“inherent conflict.” Dix Comments, May 19, 2004, at 5.
Where a solicitation contains such a patent ambiguity, an
offeror has an affirmative obligation to seek
clarification prior to the first due date for responding
to the solicitation following introduction of the
ambiguity into the solicitation. 4 C.F.R. § 21.2(a)(1)
(2004); see American Connecting Source d/b/a/ Connections
, B-276889, July 1, 1997, 97-2 CPD ¶ 1 at 3. The purpose
of our timeliness rule in this regard is to afford the
parties an opportunity to resolve ambiguities prior to the
submission of solicitation responses, so that such
provisions can be remedied before firms formulate their
responses. Gordon R. A. Fishman , B-257634, Oct. 11, 1994,
94-2 CPD ¶ 133 at 3. Where a patent ambiguity is not
challenged prior to submission of solicitation responses,
we will dismiss as untimely any subsequent protest
assertion that is based on one of the alternative
interpretations as the only permissible interpretation.
U.S. Facilities, Inc. , B-293029, B-293029.2, Jan. 16,
2004, 2004 CPD ¶ 17 at 10. (Dix
Corporation, B-293964, July 13, 2004) (pdf)
On March 30, the contracting officer informed CDC via
e-mail that VA had not selected CDC’s quotation. CDC
immediately sent an e-mail to the contracting officer
advising that it would protest VA’s decision upon receipt
of formal notification and explanatory documents. In a
letter dated April 5, postmarked April 8, and received by
CDC April 11, VA again notified CDC of its decision to
select Braun and briefly explained the reasons for its
decision. CDC filed its protest with our Office on April
12. VA argues that CDC’s protest is untimely because it
was not filed within 10 days of the contracting officer’s
preliminary e-mail notice that CDC’s quotation had not
been selected. See Bid Protest Regulations, 4 C.F.R. §
21.2(a)(2) (2004). We disagree. The agency’s April 5
e-mail advising that Braun’s quotation had been selected
did not contain sufficient information to put CDC on
notice of its basis for protest. Immediately after
receiving that e-mail, CDC acted reasonably and promptly
by first requesting further information from the agency,
and then filing its protest on April 12, the same day it
received the agency’s letter explaining in some further
detail the basis for the selection decision. See Alliance
Properties, Inc., B-203539, Oct. 28, 1981, 81-2 CPD ¶ 357
at 2. (Chicago Dryer Company,
B-293940, June 30, 2004) (pdf)
While we acknowledge the significance of the matters
Saltwater raises, these issues are not timely at this
juncture. Our Bid Protest Regulations require that
improprieties in a solicitation--including those which did
not exist in the initial solicitation, but were
subsequently incorporated--must be raised prior to the
next closing time for receipt of proposals. 4 C.F.R. §
21.2(a)(1); East Penn Mfg. Co., Inc., B-261046, Aug. 1,
1995, 95-2 CPD ¶ 50 at 3. Put simply, Saltwater’s
contention that it became aware of these potential
ambiguities upon receipt of the modification on December
2, rather than upon receipt of the agency’s November 18
second request for FPRs, is not persuasive. As set forth
above, a comparison of the November 18 request for a
revised proposal with the terms of the modification
provided to implement the new selection decision shows
nothing in the modification that was not previously
disclosed to the company in the November 18 request.
Specifically, the November 18 request: (1) expressly
advises that fisheries observers will be viewed as
non-exempt employees eligible for overtime; (2) advises
that overtime must be paid at a rate not less than 1½
times the basic rate of pay for hours worked in excess of
40 per week; and (3) advises that NMFS views these
requirements as applicable whether an observer is within
or without U.S. territorial waters. AR, Tab 16, at 1. Each
of these issues is reflected, in very similar terms, in
the December 2 modification. Indeed, Saltwater’s response
to the request for a second FPR indicates to us that the
company fully understood the implications of the NMFS
policy statement--and had concerns about it. In this
regard, it advised the agency that while it had revised
its proposal, it did not want its actions to be construed
as agreement that the NMFS policies were required by law.
In our view, the clear language of the November 18 notice,
Saltwater’s caveat about it, and the lack of any
meaningful difference between the notice and the December
2 modification, mean that Saltwater was required to raise
any challenge to these overtime policies prior to
submitting its second FPR. Its attempt to do so now--as
the underlying basis for challenging the termination of
its contract for its refusal to execute the
modification--is untimely. (Saltwater
Inc., B-293335.3, April 26, 2004) (pdf)
Reedsport also questions the CO’s justification for
removing Station Tillamook from Lot 4, on the basis that
the agency report shows that the justification was based
in part on the CO’s miscalculation of transit times from
Modutech’s and Reedsport’s facilities. This allegation
also is untimely. Even if the protester was unaware of the
underlying justification for the amendment until it
received the agency report, a challenge to an amendment
that could have been timely raised cannot subsequently be
revived by an event--such as the protester’s receipt of
documents indicating the agency’s reasoning for the
amendment--that only serves to confirm the untimely
protest grounds. All Phase Envtl., Inc., B-292919.2 et
al., Feb. 4, 2004, 2004 CPD ¶ __ at 9 n.4. In any case,
prejudice is a necessary element of every viable protest,
and since Reedsport was able to bid on both Lot 3 and Lot
4, it is not apparent how the firm was competitively
harmed. Indeed, Reedsport won Lot 3, and the MLBs from
Station Tillamook therefore will provide additional work
for Reedsport under the contract. Parmatic Filter Corp.,
B-285288.3, B-285288.4, Mar. 30, 2001, 2001 CPD ¶ 71 at
11; see Statistica, Inc. v. Christopher, 102 F. 3d 1577,
1581 (Fed. Cir. 1996). (Reedsport
Machine & Fabrication, B-293110.2; B-293556, April 13,
2004) (pdf)
Under our Bid Protest Regulations, protests must be
filed in our Office no later than 10 days after the
protest grounds were known or should have been known. 4
C.F.R. § 21.2(a)(2) (2003). Supplemental protests must
independently satisfy our timeliness requirements. Saco
Defense Corp., B-283885, Jan. 20, 2000, 2000 CPD ¶ 34 at
5-6, n.3. The record shows that ACT received its copy of
the agency report--which contained the information on
which ACT’s additional arguments are based--on November
10, 2003, and that its comments on the report were not
filed in our Office until November 21. By letter dated
November 11, the protester’s counsel advised us that,
although he had actually been handed a copy of the report
at 6:00 p.m. on November 10, this was after the firm’s
regular business hours; protester’s counsel therefore
asserted that the 10-day period for filing comments and
for raising any new protest grounds based on the report
did not begin to run until the next day, November 11, and
that both ACT’s comments and any supplemental protest
grounds were due by November 21. By telephone, on November
17, we granted ACT’s request to file its comments on
November 21. Although ACT’s counsel asserts to the
contrary, we did not further state that the timeliness
period for raising new protest grounds was extended. Nor
do we believe it would have been appropriate to grant such
an extension, since ACT’s counsel concedes that he was in
actual receipt of the agency report on November 10 (as
opposed to November 11). This being the case, ACT was
required to file any supplemental protest grounds within
10 days after November 10, that is, no later than November
20. Since the supplemental bases for protest were not
filed until 11 days after ACT’s receipt of the agency
report, they are untimely and will not be considered. (AC
Technologies, Inc., B-293013; B-293013.2, January 14,
2004) (pdf)
Our Bid Protest Regulations contain strict rules for the
timely submission of protests. Under these rules, a
protest based on other than alleged improprieties in a
solicitation must be filed not later than 10 calendar days
after the protester knew, or should have known, of the
basis for protest, whichever is earlier. 4 C.F.R. §
21.2(a)(2) (2003). Our timeliness rules reflect the dual
requirements of giving parties a fair opportunity to
present their cases and resolving protests expeditiously
without unduly disrupting or delaying the procurement
process. Dominion Aviation, Inc.--Recon., B-275419.4, Feb.
24, 1998, 98-1 CPD ¶ 62 at 3. Here, NVT acknowledged
receipt on July 31 of the agency’s document addressing the
regulatory requirements for a substantial bundling
analysis. However, since NVT did not challenge the merits
of the agency’s substantial bundling analysis until more
than 10 days after it received the relevant document, we
will not consider NVT’s protest in this regard. (NVT
Technologies, Inc., B-292302.3, October 20, 2003) (pdf)
Gamut maintains that its protest was timely because it
did not notice the improprieties prior to its proposal's
rejection, which then prompted it to perform a “detailed
analysis of the solicitation,” and because it was unaware
that the agency considered the solicitation a BAA until
after Gamut had filed its original protest. Response to
Motion to Dismiss, June 6, 2003; Gamut Letter, June 11,
2003 at 1. This argument is without merit. The
solicitation plainly laid out all aspects of the
requirement that Gamut now protests: the phased nature of
the procurement, the evaluation criteria, and the agency's
significant discretion in selecting all, some, or none of
the proposals for demonstration or awards. Thus, Gamut
was, or should have been, fully aware of all the matters
it now challenges, and could not delay protesting until it
completed its “detailed analysis.” While Gamut may not
have been aware that the solicitation was a BAA, the
essence of its protest--that the agency's substantive
approach to the procurement was flawed--was not dependent
upon this information, and the fact that the protest
incorporated this information therefore did not render it
timely. Gamut asserts that we should consider its
untimely arguments under the significant issue exception
to our timeliness requirements. 4 C.F.R. § 21.2(c). Under
this exception, we may consider a protest notwithstanding
its untimeliness when, in our judgment, doing so would be
in the interest of the procurement system. ABB Lummus
Crest Inc., B‑244440, Sept. 16, 1991, 91-2 CPD ¶ 252 at 4.
The exception is limited to protests that raise issues of
widespread interest to the procurement community, and that
have not been considered on the merits in a previous
decision. Id. We find no basis for applying the exception
here since, while the protest is of interest to Gamut,
there is no reason to believe that the issues raised would
be of widespread interest to the procurement community.
DSDJ, Inc., B‑288438 et al., Oct. 24, 2001, 2002 CPD ¶ 50
at 3. (Gamut Electronics, LLC,
B-292347; B-292347.2, August 7, 2003) (pdf)
As stated in the supplemental agency protest, the
protester's allegation was based upon information first
learned at the debriefing, namely that the Air Force had
rated Platinum and Clay the same for past performance and
thus found them to be “equally as qualified.”
Protester's Comments, Tab G, Supplemental Agency Protest,
at 1-2. Because this protest ground was received by the
Air Force within 10 days of the debriefing, it was timely
filed with the agency, and Clay's subsequent protest was
timely filed at our Office because it was received here
within 10 days of when Clay received notice of the Air
Force's dismissal of its agency protests.[3] The agency's
argument that Clay's entire protest should be dismissed
because it did not timely request a debriefing is
meritless, given that non-required debriefings are
permitted, see Federal Acquisition Regulation (FAR) §
15.506(a)(4)(i), and a protest based on information first
revealed in a non-required debriefing, as here, is timely
if filed within 10 days of the debriefing. Beneco Enters.,
Inc., B-283154, Oct. 13, 1999, 2000 CPD ¶ 69 at 6 n.6. (Robert
Clay, Inc., B-292443, August 14, 2003) (pdf)
Here, HMX's proposal explicitly takes exception to the
solicitation's requirements for proposal information, such
as cost and pricing data and technical data requirements.
Agency Report, Tab L, HMX's Proposal, at H-1 through H-4.
This portion of the proposal sets forth HMX's position
that the NRA's proposal preparation instructions do not
comply with the Commercial Space Act, and that the Act
permitted HMX to deviate from the terms of the NRA to
comply instead with the standards for proposals for
commercial items as reflected in FAR Part 12, Acquisition
of Commercial Items. However, the NRA did not reference
the Act or FAR Part 12. Therefore, even if we accept
the protester's interpretations of the Act as both
applying to this NRA by operation of law and requiring
acquisition of the launch services proposed by HMX
consistent with the regulations governing the acquisition
of commercial items, there remains the unavoidable fact
that the express terms of the NRA are inconsistent with
HMX's interpretation of the Act. This obvious conflict can
only be viewed as an alleged impropriety apparent on the
face of the solicitation. Since HMX did not protest until
after its proposal was rejected--i.e., well after the time
set for receipt of proposals--the protest is untimely.
(HMX,
Inc., B-291102, November 4, 2002) (txt
version)
We do not agree that Payne's protest is untimely. The
protester is objecting to the agency's failure to consider
its quotation; accordingly, we think that Payne's period
for filing a protest did not begin to run until the
contracting officer notified it that he had not considered
the quotation. The notification that the protester
received on October 15 did not start the 10-day period
running because, while it informed the protester of the
selection of Ridgley, it did not advise the protester that
its quotation had not been considered; thus, it did not
furnish the protester with the information providing the
basis for its protest. Further, we do not think that
the conversation between the Payne representative and a
contracting office employee on October 16 constituted
notice sufficient to start the 10-day period running
because while the employee initially informed the
protester that its quotation had not been considered
because the RFQ was not open to it, she then backtracked,
stating that there appeared to be serious problems with
the solicitation and that the protester would need to
speak with the contracting officer. Under the
circumstances of this case, we do not think that the
protester can be said to have learned of its basis for
protest until October 21 at the earliest, when a
representative of the company spoke with the contracting
officer and was told that its quotation had not been
considered. Accordingly, we consider its protest filed on
October 30 to be timely. (Payne
Construction, B-291629, February 4, 2003) (txt
version)
AST's argument is untimely. The essence of AST's
contention is that a site visit was critical to its
competitors' submitting proposals with prices that reflect
what AST views as the actual amount of liquid required to
be disposed under the contract. This is essentially a
challenge to the terms of the solicitation, which did not
make attendance at the site visit mandatory.
Alternatively, AST's presumably believes that the RFP
should have identified the amount of liquid the contractor
would be required to dispose of, or, at the least, it
should have required offerors to disclose the amount of
liquid whose removal their proposed prices reflect (which
AST itself appears not to have disclosed in its proposal).
Protests challenging alleged defects in a solicitation
must be filed prior to the time set for receipt of
proposals. 4 C.F.R. ¶ 21.2(a)(1) (2002). As the incumbent,
AST was uniquely knowledgeable of any such defect here and
thus in a position to protest without waiting to learn
that it had lost the competition. See Allstate Van &
Storage, Inc., B-247463, May 22, 1992, 92-1 CPD ¶ 465 at
5-6. Because it did not protest the alleged solicitation
defects prior to the closing date, its protest is
untimely. (AST
Environmental, Inc., B-291567, December 31, 2002.)
We have recognized that the increasing use of ID/IQ
contracts with very broad and often vague statements of
work may place an unreasonable burden upon potential
offerors, who may be required to guess as to whether
particular work, for which they are interested in
competing, will be acquired under a particular ID/IQ
contract. See Valenzuela Eng'g, Inc., B-277979, Dec. 9,
1997, 98-1 CPD P: 51 (Letter to the Acting Sec'y of the
Army, Jan. 26, 1998, at 2). This burden may be
particularly problematic for small businesses. Id. In
our view, it is unreasonable to require a small business
that believes that one specific acquisition should
continue to be set aside for small businesses to
identify the possibility, at the time proposals for
ID/IQ contracts to perform a broad and undefined scope
of work are solicited, that the specific, and relatively
small, acquisition it is interested in may ultimately be
transferred to the ID/IQ contracts. The breadth and
vagueness of the LOGJAMSS scope of work illustrate this,
since it encompassed a *wide range of logistical
functions and supporting tasks* and was undefinitized at
the time the LOGJAMSS contracts were solicited.
Accordingly, we conclude that LBM could not reasonably
be aware, and required to protest, at the time the
LOGJAMSS contracts were being competed (and apparently
years before the Army considered using those contracts
for the Fort Polk motor pool services), that the broad
and nonspecific scope of work in the LOGJAMSS
solicitation could be improperly used as a vehicle for
the agency to perform the motor pool services at Fort
Polk without first taking the steps legally required
regarding a possible further acquisition of that work
under a small business set-aside. (LBM,
Inc., B-290682, September 18, 2002) (pdf)
In a supplemental protest filed by HG more than 3 months after the underlying lease
was awarded to POC, raising issues which allegedly were based upon HG’s review of
a copy of that lease included in the agency’s report on HG’s initial protest,
HG raised numerous challenges to, among other things, the evaluation and acceptance of the
POC offer. Given the substantial passage of time since that lease was awarded,
however, we conclude that the challenges are untimely. A
protester is required to diligently pursue information forming the basis for a protest. Here, HG waited
months before it requested and reviewed information about that award for possible
bases of protest. This delay simply does not meet our requirements for the
expeditious pursuit of information.1 See Professional Rehab. Consultants, Inc.,
B-275871, Feb. 28, 1997, 97-1 CPD ¶ 94 at 2-3. (HG
Properties A, LP, B-290416; B-2904162, July 25, 2002 (pdf))
Protests
that merely anticipate improper agency action are
premature. See Saturn Indus.--Recon., B-261954.4, July
19, 1996, 96-2 CPD para. 25 at 5. Here, the Navy has, as
the protester acknowledges, not yet decided what action
or actions the agency will take in response to the
appeal authority's decision, so that there is no agency
action for our Office to review. We share the
protester's concern about the process being drawn out
unnecessarily, and in this regard it is helpful that the
Navy appears committed to moving forward expeditiously.
We recognize, however, that the issues identified by the
appeal authority are significant, and we believe that
the agency should have a reasonable opportunity to
review the appeal authority's decision to determine its
course of action. Once the Navy decides what action to
take in response to the appeal authority decision, that
decision may form the basis for a valid bid protest,
which IT or another interested party may file with our
Office at that time. (A-76 Issue) (IT
Corporation, B-288507, September 7, 2001)
Protest presenting
argument raised in appeal under Office of Management and
Budget Circular No. A-76 is untimely where filed with
the General Accounting Office more than 10 days after
contracting agency denied protester's appeal. While the
protest was filed within 10 days of cancellation of the
underlying solicitation, cancellation was merely
implementation of the denial of the appeal. (Crown
Support Services, Inc., B-287070, January 31,
2001) (pdf)
Protest based on
information obtained during post-award debriefing is not
timely filed where protester who was excluded from
competitive range requested that the debriefing be
delayed until after award. (United
International Investigative Services, Inc.,
B-286327, October 25, 2000) (pdf)
Protester's contention
that a solicitation improperly requires submission of
proprietary technical data for evaluation of a
commercial item in violation of the regulations
governing commercial item acquisitions is rendered
academic when the agency waives the application of the
regulation, and the protester fails to raise a timely
objection to the waiver. (ATA
Defense Industries, Inc., B-282511.8, May 18,
2000.) (pdf)
Protest of an alleged
solicitation impropriety--that the agency improperly
considered crew berthing costs in the evaluation of
price proposals--is dismissed as untimely where the
protester waited until after award to raise this issue.
(Burns
and Roe Services Corporation, B-282437.3, November
30, 1999) (pdf)
Oahu also argues that
the Air Force should have amended the solicitation to
incorporate the answers to various questions asked by
Oahu. This allegation concerns an alleged solicitation
impropriety, see Texnokpatikh, B-245835.2, Feb. 6, 1992,
92-1 CPD para. 153 at 2, and was not timely raised at
our Office. The record reflects that Oahu filed a timely
agency-level protest of this issue before initial
proposals were due on February 2. See 4 C.F.R. sec.
21.2(a)(1). The agency denied this protest on February
26. To be timely, this issue should have been protested
to our Office within 10 days of the agency's denial, or
by March 8, but Oahu waited until March 10. See 4 C.F.R.
sec. 21.2(a)(3). Although Oahu notes that it protested
within 10 days of a requested and required debriefing,
the debriefing exception to our timeliness rules does
not apply to protests based upon alleged solicitation
improprieties, such as this one.[2] See 4 C.F.R. sec.
21.2(a)(2). (Oahu
Tree Experts, B-282247, March 31, 1999) |