Today, I am continuing with the Fox Rothschild Federal Government Contracts & Procurement Blog’s 10-part series on Government Accountability Office (“GAO”) bid protests. In Part 4, we tackle the all-important question of Protest Timing. To get you up to speed on earlier posts in the series, here are some links to Parts 1, 2, and 3.
It goes without saying that timing is key in all legal matters. However, timing is of particular importance for bid protests due to the strict deadlines enforced by the GAO. A contractor has only a matter of days (literally) between the date it discovers a government error in the procurement and the deadline for filing a bid protest.
The first timing issue concerns protests based on defects in a solicitation that are obvious or apparent on the face of the solicitation itself. If the defect is apparent prior to bid opening or the time set for the receipt of proposals, then the protest must be filed prior to that triggering event (that is, the protest must be received by the GAO prior to bid opening or the date when proposals are due). The same rule applies if the protest is based on a defect in an amendment to a solicitation. In that case, the protest must be filed before the due date for revised proposals.
For protests based on government errors other than solicitation defects, the protest must be filed with the GAO within 10 days after receiving actual or constructive knowledge of the basis for the protest. The GAO does not look favorably upon protestors that have their “head in the sand” or otherwise do not use their best efforts to obtain the information needed to support a protest. In other words, you cannot sit around and wait for the protest to come to you. Contractors must be proactive in order to successfully pursue GAO protests, or risk missing out on the 10-day filing window.
Notably, the GAO provides a special timing exception for competitive procurements involving required agency debriefings. If a debriefing is timely requested by the protester, the protest must be filed no later than 10 days after the debriefing is held. This is true even if the agency elects to delay a pre-award debriefing until after an award is made. Under these circumstances, the debriefing is the key triggering event.
Importantly, contractors considering a protest must be aware that GAO “days” are not “weekdays” or “working days.” The GAO calculates deadlines based on calendar days. Thus, if you have 10 days to file a protest, that amounts to 10 calendar days (unless the filing date falls on a weekend or federal holiday, in which case the protest is due on the next working day).
GAO bid protest timing is an exact science – in fact, in a recent protest decision, the GAO discussed the time for filing a bid protest down to the second! It is in your best interest to make sure that you (or your attorney) are on top of these deadlines and – to the extent possible – always try to file a day early, just to be safe.
Tune back in next week, when we continue with Part 5 of the series – How to Prepare Your Bid Protest.