Protest Timing and the Goldilocks Problem
June 1, 2018
By: Eric Whytsell
Offerors seeking to protest an agency decision face a number of important decisions. One of the most fundamental--and potentially tricky--such issues is when to file the protest. File before an adverse decision by the agency and the protest will be dismissed as premature. But wait too long and it will be dismissed as untimely. While the general rules of protest timing may seem relatively straightforward, they can be very complicated depending on the facts. In its recent decision in Sikorsky Aircraft Corporation, B-416027; B-416027.2 (May 22, 2018), the Government Accountability Office (GAO) addressed the timing question in particularly vexing circumstances and provided useful guidance for determining the “just right” time to file.
The matter involved a pre-award protest challenging the interpretation of solicitation terms by the Air Force. The request for proposals (RFP) in question related to the agency’s procurement of a fleet of helicopters, along with associated equipment and services, to replace the UH-1N helicopter, which was originally manufactured in the 1960s. It contained several special contract clauses describing the agency’s intellectual property (IP) requirements. Sikorsky timely submitted its proposal, which advanced its interpretation of the IP clauses. In response, the Air Force issued a number of Evaluation Notices (ENs) objecting to Sikorsky’s interpretation of the IP clauses, which it believed was contrary to the terms of the RFP.
Shortly thereafter, Sikorsky filed an agency-level protest with six grounds addressing the various interpretation disputes. The agency dismissed the first five as untimely and the sixth as legally insufficient, but still provided a detailed substantive response on the merits of each. Sikorsky then filed its protest at the GAO, raising a total of seven grounds. After dismissing the first clause as untimely because it was based on information plain on the face of the RFP, the GAO noted the unusual procedural posture in which the remaining protest grounds--all essentially challenging the RFP terms--were presented.
Usually, to be timely, such challenges must be filed with GAO before the deadline for submitting proposals. Here, however, the GAO noted that the remaining protest grounds do not fall under that timeliness requirement because Sikorsky claimed it had no basis, prior to the submission of proposals and receipt of the agency’s ENs, to know that the agency interpreted the RFP in a manner that was inconsistent with Sikorsky’s interpretation. But this argument raises another issue: protests contending an agency has evaluated proposals in a manner inconsistent with the terms of a solicitation are typically filed after the agency announces its source selection decision or following a debriefing. In most cases, the GAO dismisses as speculative and premature protests alleging that an agency intends to evaluate proposals in a manner inconsistent with the terms of a solicitation that are filed prior to the agency’s actual evaluation of proposals, particularly where, as here, they occur in the context of a negotiated procurement in which a debriefing will be available.
The GAO then explained that the circumstances of this procurement--where an issue relating to the interpretation of the solicitation arose during discussions--create a tension between the underlying protest timing principles. More particularly, the rules governing solicitation challenges encourage filing a protest as early as possible to promote fundamental fairness and efficiency, while the debriefing exception allows a delay in filing a protest until offerors have additional facts about the agency’s actions.
The GAO’s decisions assessing the question of whether an offeror should bring a protest of an agency interpretation of the solicitation during discussions, where that interpretation has been advanced to one offeror in discussions as part of the agency’s evaluation, have come to fact-specific conclusions. But existing GAO case law does provide a couple useful guideposts for working through such issues. First, where the agency advises all offerors of an interpretation of the solicitation that the protester finds objectionable or ambiguous, a protester must file a protest prior to the next time for closing, or, if there is no opportunity to submit revised proposals, within 10 days. On the other hand, protests filed during discussions that amount to allegations of unequal or other than meaningful discussions are unambiguously treated as premature.
On the facts of this case, the GAO concluded that, where the agency has clearly advanced an interpretation of the solicitation during discussions that is contrary to the protester’s understanding of the solicitation, and the protester challenges that interpretation in an agency-level protest, the agency’s substantive response to that agency-level protest renders the issue sufficiently final such that the GAO’s consideration of the issues during discussions is the most efficient, least intrusive alternative. On the other hand, if a protest issue related to an interpretation of the solicitation is, in essence, an evaluation challenge brought during ongoing discussions, the GAO will not address it. Applying these principles, the GAO found some of Sikorsky’s remaining protest grounds timely, some untimely, and some premature.
If you ever face a situation like that Sikorsky confronted and need to determine the “not too early,” “not too late” time to file a protest, this is your go-to case. It highlights the highly fact-specific nature of the analysis to be undertaken when deciding when to protest and not only collects and discusses cases but also provides examples of the proper application of the general rules to various protest grounds.
Eric Whytsell is responsible for the content of this Article.
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