Watch Out for Flying Pigs! GAO Permits and Grants Untimely Protest
September 13, 2012
In a very rare move, GAO allowed an untimely protest under the significant issue exception to its timeliness rules. Cyberdata Technologies, Inc., B-406692 (Comp. Gen. Aug. 8, 2012). Generally, a protest challenging the solicitation terms must be made prior to bid closing and a protest challenging the evaluation must be made within 10 days of learning of the basis for the protest. 4 C.F.R. § 21.2(a). If a protest is untimely according to these regulations, GAO will almost always dismiss it. However, where GAO determines that a protest raises issues significant to the procurement system, [it] may consider an untimely protest. 4 C.F.R. § 21.2(c). According to GAO, a significant issue is one of widespread interest to the procurement community and has not been previously decided. GAO determines the significance of issues on a case-by-case basis.
This decision does not mean GAO is relaxing its timeliness rules. As explained in a different protest decision, [I]n order to prevent the timeliness rules from becoming meaningless, this exception is rarely implemented. UXB-KEMRON Remediation Services, LLC, B-401017.4 (Comp. Gen. Oct. 25, 2010). Therefore, it is still extremely important for a contractor considering a protest at GAO to pay close attention to the timeliness rules rather than arguing that the protest raises a significant issue in the hope that GAO will invoke the timeliness exception.
The significant issue in Cyberdata Technologies was whether price or cost must be considered before a technically acceptable proposal (or quotation) can be excluded from consideration for award of a blanket purchase agreement (BPA) under the Federal Supply Schedule (FSS). The solicitation terms stated that price would not be considered when downsizing the number of quotations to the twelve most favorably evaluated quotations; thus, the protestor should have protested the terms of the solicitation prior to bid closing. However, the protestor waited to file its protest until after the agency established the BPAs and argued that price should have been one of the factors considered when eliminating technically acceptable proposals from the competition.
As previously reported here, GAO recently confirmed that an agency must consider price in a best value procurement before eliminating a technically acceptable proposal. However, before Cyberdata Technologies, GAO had not decided this issue in the context of a BPA under the FSS. For this reason, GAO determined this was a significant issue justifying the exception to the timeliness rules. Ultimately, GAO concluded that, as in other contexts, an agency must consider price as one of the factors in a best value analysis before excluding a technically acceptable offer from consideration for award of a BPA under the FSS.
Katie Calogero is the attorney responsible for the content of this article.