Bid Protest - When to Protest

WHEN TO PROTEST

The regulations set forth the timeliness requirements for filing protests at GAO. 4 C.F.R. § 21.2. Because bid protests may delay the procurement of needed goods and services, GAO, except under limited circumstances, strictly enforces these timeliness requirements.

Protests alleging improprieties in a solicitation must be filed before bid opening or the time set for receipt of initial proposals if the improprieties were apparent prior to that time. 4 C.F.R. § 21.2(a)(1). A solicitation defect that was not apparent before that time must be protested not later than 10 days after the defect became apparent. In negotiated procurements, if an alleged impropriety did not exist in the initial solicitation but was later incorporated into the solicitation by an amendment, a protest based on that impropriety must be filed before the next closing time established for submitting proposals. Id.

In all other cases, protests must be filed not later than 10 days after the protester knew or should have known the basis of protest (whichever is earlier), with the exception of protests challenging a procurement conducted on the basis of competitive proposals under which a debriefing is "requested and, when requested, is required" (that is, a debriefing that is required by law). In these cases, with respect to any protest basis that was known or should have been known before the statutorily required debriefing, the protester should not file its initial protest before the debriefing date offered to the protester, but must file its initial protest not later than 10 days after the date on which the debriefing was held. 4 C.F.R. § 21.2(a)(2).

The purpose of the exception to the timeliness rules for negotiated procurements where debriefings are required by law is to encourage vendors to seek, and contracting agencies to give, early and meaningful debriefings prior to the vendor’s deciding whether or not to file a protest. A protester therefore will always have up to 10 days after the required debriefing to file its initial protest.

Special timeliness rules govern protests initially filed with the contracting agency. In those cases, the protest to GAO must be filed not later than 10 days after the protester learned of "initial adverse agency action." 4 C.F.R. § 21.2(a)(3). Deciding when adverse agency action occurs is straightforward when the protester receives oral or written notice that the agency is denying the agency-level protest. Protesters should keep in mind, however, that GAO views as adverse agency action any action that makes clear that the agency is denying the agency-level protest. Examples of adverse agency action include the agency's proceeding with bid opening or the receipt of proposals, the rejection of a bid or proposal, or the award of a contract despite the agency-level protest. Firms that have filed an agency-level protest and are considering filing a subsequent protest with GAO should be alert to any possible agency action that could be viewed as indicating that the agency is denying the agency-level protest.

Agency-level protests must be filed in accordance with GAO's timeliness rules at 4 C.F.R. § 21.2(a)(1) and (a)(2), unless the agency imposes a more stringent time for filing, in which case the agency's time for filing will control. Thus, even if a firm files a protest with GAO within 10 days of initial adverse agency action, GAO will consider the protest untimely if the agency-level protest was not timely filed under GAO's timeliness rules or under an agency's rules if those rules are stricter. 4 C.F.R. § 21.2(a)(3). For example, if a firm waits until after bid opening to file an agency-level protest of an apparent solicitation impropriety, GAO will not consider a protest of that impropriety even if it is filed within 10 days of the firm's learning that the agency has denied the agency-level protest, since the agency-level protest was not filed prior to bid opening.

GAO may consider an untimely protest where exceptional circumstances beyond the protester's control caused the delay in filing the protest, or where the protest presents novel or significant issues of interest to the procurement community. 4 C.F.R. § 21.2(c). Protesters should be aware, however, that GAO will invoke these exceptions sparingly.

Finally, GAO recognizes that the North American Free Trade Agreement (NAFTA) contains a 10-working-day timeliness requirement, which is inconsistent with GAO's timeliness rules. However, because of the flexibility of GAO's timeliness rules, GAO will afford a NAFTA protester all treaty rights for purposes of the timely filing of a protest^[1].

Protests Filed Prior to a Debriefing Required by Law

In administering the timeliness rule at 4 C.F.R. § 21.2(a)(2), GAO may close a file without prejudice on any protest that has been filed before a statutorily required debriefing, upon appropriate notice by an agency to GAO that a debriefing date has been offered. Appropriate notice would include the agency’s furnishing a copy of its letter or other notice to the protester scheduling the debriefing. GAO anticipates that the debriefing will normally occur on the first date offered by the agency. In the event, however, that the agency subsequently agrees to another date, the debriefing held on that date will be used as the basis for determining the timeliness of the protest.

Debriefing Procedures

The rules governing the timing and contents of a statutorily required debriefing are contained in Part 15 of the Federal Acquisition Regulation.

Diligent Pursuit

In all cases, protesters must diligently pursue the information that may provide a basis for protest, including requesting a prompt debriefing.

Supplemental/Amended Protests

Protesters should keep in mind that each new ground of protest must independently satisfy GAO’s timeliness requirements. For example, if GAO grants an extension of time for filing comments on an agency report, the comment extension does not extend the 10-day time frame for filing a timely supplemental/amended protest. As a result, if a protester waits until the extended due date for filing comments to raise new or amended protest grounds, those grounds may be dismissed as untimely if they were raised more than 10 days after the protester learned or should have learned of them.