Bid Protests – Timeliness TipsPosted: January 4, 2017
This is a guest post by Jerry Miles of Deale Services, LLC.
Think twice before delaying a pre-award debriefing
A recent GAO case reiterates the idea that offerors must “diligently pursue” their protest options and be mindful of timeline issues that are raised when a pre-award debriefing is requested. See VMD Systems Integrators, Inc., B-412729, 2016 WL 1085374 (Comp. Gen. Mar. 14, 2016).
While offerors may request that a debriefing be delayed until after award, FAR 15.505(a)(2) specifically warns that delayed debriefings “could affect the timeliness of any protest filed subsequent to the debriefing.” The offeror in VMD should have heeded this warning.
In VMD, the protestor was eliminated from the competitive range but chose to delay a pre-award debriefing until after the award. In that debriefing it learned that it may have been treated unequally in its elimination from the competitive range. The offeror protested but the GAO declined the protest, holding that at the time it chose to delay the debriefing the protester could have learned of the alleged unequal treatment.
By choosing to receive a post-award, “it effectively chose not to protest its exclusion from the competitive range.” Because more than 10 days had passed since the time the protester elected to delay the debriefing, the GAO dismissed the protest.
From the timing perspective, protest grounds are viewed broadly
The GAO’s recent decision in REB ROWE Services, LLC; General Services Administration–Reconsideration, B-410001.6; B-410001.7 (Apr. 4, 2016), demonstrates this point with respect to timeliness rules in a supplemental protest.
In that case, REB ROWE Services, LLC, the awardee, and the General Services Administration asked the GAO to reconsider its decision in Alcazar Trades, Inc.; Sparkle Warner JV, LLC, B-410001.4; B-410001.5, April 1, 2015, 2015 CPD ¶ 123, in which the GAO sustained a protest by Alcazar Trades, Inc. (“ATI”), arguing that ATI’s price realism allegation was untimely raised.
In denying the request, the GAO took a broad view of the initial protest grounds, holding that “whether ATI couched its challenges to the government estimate as an argument about price realism, or about adequate staffing, the essential elements in dispute were the same.”
Further, the GAO stated “[w]hile the agency and REB ROWE accurately charge that ATI applied the label of ‘price realism’ to its challenges only when it filed its comments on the agency report, we conclude that the protester had essentially raised, before it filed its comments, all of the elements that eventually led us to sustain the protest because the agency performed a flawed review of price realism.”
Remember the automatic stay
Most of us know that the automatic stay under the Competition in Contracting Act is a significant factor in choosing to protest at the GAO. While in order to be timely, a protester must file within 10 days of the contract award or 5 days of the required debriefing, it is important to remember that the stay is not triggered until the GAO provides notice to the agency.
In fact, the GAO has one business day in which to provide such notice. Thus, although a protest may be timely if filed within 10 days of the award or 5 days of the debriefing, the stay will not be awarded unless the protest is filed at least one day earlier than this filing deadline.
Jerry Miles of Deale Services, LLC (http://www.dealeservices.com) is a government contracts attorney and business consultant with experience working as corporate counsel for a Fortune 500 government contractor and as a private practitioner for over one hundred small, midsize and large businesses. In addition to being the owner of a law firm, Mr. Miles regularly advises clients on teaming agreements, joint ventures, subcontracting, government contract disputes, bid protests, international contracting matters and corporate compliance.
This post originally appeared at http://www.dealeservices.com/uncategorized/bid-protests-timeliness-tips/ and was adapted and reprinted with permission.