Most litigators are used to handling cases in which they will have several years to prepare and file a complaint or be able obtain enlargements of time after an action has commenced. However, before the U.S. Government Accountability Office (“GAO”), a contractor will never have more than 10 days to file a bid protest, and will frequently have less.
Specifications Challenges Must Be Filed Before the Deadline for Submitting Proposals
Many contractors and attorneys don’t know that they have a right to challenge not only the evaluation of offers and proposed awards, but also the terms or specifications of solicitations that constitute the ground rules of a procurement. As a general matter, an agency has great discretion to determine its needs and draft solicitation terms and specifications. However, when an agency drafts a solicitation, it is required to specify its needs in a manner designed to achieve full and open competition and may include restrictive requirements only to the extent they are necessary to satisfy the agency’s legitimate needs. Per 4 C.F.R. 21.2(a), all challenges to the terms of a solicitation must be filed prior to the time of bid opening or the time set for receipt of initial proposals. If a solicitation is amended after initial proposals are received, then a challenge to the amendment must be filed prior to the next closing time for the receipt of proposals.
For example, in Technosource Information Systems, et al., the request for quotations called for cloud computing services, and required that any non-U.S.-based cloud computing data centers be located in Trade Agreements Act Designated Countries. The agency was unable to articulate a rational reason for this restriction, and the protest was sustained.
A less obvious specifications challenge is when the specifications are unclear (patent ambiguity). The ambiguity does not have to be in the solicitation document itself to trigger the timeliness requirements of 4 C.F.R. 21.2(a).
In Harrington, Moran, Barksdale, Inc., the protestor received a letter from the contracting officer that contradicted the solicitation’s submittal requirements. The protestor followed the letter’s instructions and its proposal was rejected for failing to follow the solicitation’s submittal requirements. The contractor protested, and the GAO dismissed the protest as untimely, holding that the contradictory written instructions given by the contracting officers created a patent ambiguity that need to be protested prior to submitting a proposal.
The lesson of Harrington is that contractors always need to be on the lookout for potential inconsistencies or loopholes that will essentially allow the agency to do whatever it wants in terms of rejecting, accepting, or evaluating offers, and must be prepared to promptly file a protest.
The GAO is extremely strict about its timeliness requirements, and you don’t want to be the attorney who files anything a second late. It is important that contractors and their counsel be proactive in terms of examining solicitations for specifications challenges.
In next week’s post, we’ll examine how a properly filed protest under the Competition in Contracting Act (CICA) can trigger an automatic stay or postponement of a contract award or performance. The CICA stay is what makes GAO protests meaningful and is the main benefit of filing a protest before the GAO.