Timing is everything when it comes to bid protests at GAO.

There is a mountain of GAO case law dismissing untimely protests.  Contractors must strictly follow GAO’s regulations to avoid that fate and obtain a Competition in Contract Act (CICA) stay.

Today, we address the question of whether government agencies can override GAO’s deadlines by providing contractors with an alternate protest timeline. 

The short answer – no.  Contractors cannot rely on agency guidance when it comes to calculating protest deadlines.  Follow anything other than the applicable regulations at your peril.

GAO Timeliness Overview

GAO enforces strict timelines when it comes to bid protests that generally fall into two buckets – pre-award and post-award:

Pre-Award Protests (On or Before Date for Proposal Submission)

To file a timely pre-award protest challenging alleged improprieties in a solicitation, the protest must be filed on or before the date and time set by an agency for receipt of proposals.

This means there is no “wait-and-see” approach.  A contractor cannot challenge the terms of the solicitation only upon learning it was not selected for award. 

Contractors also should not bet the farm on a successful protest.  A valid proposal in response to the solicitation is required to establish protest standing and keeps you in the game for an award even if the protest is denied.

Post-Award Protests (Five or Ten Days)

To protest a contract award and secure a CICA stay, contractors must file within ten calendar days after the basis for the protest is known or should have been known” or within five calendar days of a debriefing that is requested and required, whichever is later.

Note the “required” language when it comes to debriefings.  A debriefing that is not required under the FAR does not count towards the timing rules – a fact that is particularly important for a protester seeking to take advantage of the CICA stay.

With respect to required debriefings, the GAO protest clock begins to run when the debriefing is “concluded.”  Further complicating the issue, GAO will dismiss a protest as premature if it is filed before the conclusion of a required debriefing. So, under these rules, a potential protester has to avoid both being too early and too late.

When In Doubt . . .

If there is any question of a procurement violation, contractors should follow the requirement to file within 10 days of when it knew or should have known of the irregularity.  Waiting to see how things play out with the procurement is never a good strategy at GAO.

But What If the Agency Provides a Different Timeline?

Having established that GAO’s timeliness rules are complex and inflexible, we now ask whether there is relief for contractors when the agency offers a competing timeline during the debriefing process –

A new GAO decision says: No.

The decision (SMS Data Products Group, Inc., B-423341 et al.) considered a protest to the issuance of a task order for Air Force information network support services.  The protester challenged various aspects of the agency’s evaluation, including misleading discussions and a flawed best-value determination. While GAO ultimately denied the protest on the merits, what stood out was a subtle but critical clarification about the rules that govern debriefings and protest timing.

The procurement in question was conducted under FAR 16.5 procedures, which include the option for a disappointed offeror to request a debriefing within three days after the notice of contract award.  Here, the agency did not wait for a request and issued a debriefing letter along with the unsuccessful offeror notice.

To make things even more complicated, the procurement was subject to DFARS enhanced debriefing rules (DFARS 215.506-70).  As part of the enhanced debriefing, the offeror is entitled to submit additional questions no more than two business days after receiving the debriefing.  The act of submitting timely questions has the effect of keeping the debriefing “open” for purposes of calculating GAO’s timeliness rules (i.e., a protest is timely when filed within 5 days after the conclusion of a requested and required debriefing).

The debriefing letter provided to the protester stated that the agency would accept questions for up to three business days.  The protester submitted questions on the third day – timely for the agency’s purposes but a day late under the enhanced debriefing regulation.

Because the protester followed the agency’s timeline (three days) instead of the two-day enhanced debriefing rule, GAO considered the debriefing closed as of the date it was issued.  Under the circumstances, the protester could not base its protest timing on when the agency answered its debriefing questions.  GAO therefore applied the default rule (within 10 days of when the protester knew or should have known its basis of protest) to govern the question of timing. 

Luckily for the protester, it decided to file the protest within 10 days of the initial debriefing, instead of waiting for the agency to answer its questions.  As a result, GAO found that the protest was neither premature nor untimely, and considered the protest allegations on the merits.  

Contractor Takeaways

GAO’s decision may seem hyper-technical, but that is par for the course when it comes to protest timing.

The consequences of missing the timing window are fatal to a protest. If a contractor relies on an agency’s instructions instead of following the applicable regulations to the letter, it risks having the protest dismissed outright, regardless of how strong the underlying arguments might be.

The lesson here is simple but crucial – Contractors must always anchor a protest to deadlines in the applicable regulation – not in agency correspondence. Treat any agency-provided deadline with healthy skepticism and verify it against the actual rules.

And when in doubt, file early. A placeholder protest that preserves your rights is far better than one filed a day too late because the agency said you had more time.

Evan Williams is a Partner in Fox Rothschild’s Government Contracts Practice Group.  You can reach Evan directly at evanwilliams@FoxRothschild.com or 202-696-1443.

Nick Solosky is a Partner in Fox Rothschild’s Government Contracts Practice Group.  You can reach Nick directly at NSolosky@FoxRothschild.com or 202-696-1460.