Pre and Post Award Bid Protest

Protestors Must Know and Follow Rigid GAO Protest Rules

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Your brilliant grounds for bid protests won't matter if you don't follow strict procedural rules. When filing a bid protest with the Government Accountability Office (GAO ), strict compliance with GAO regulations is required. The importance of knowing and understanding the rules for bid protests cannot be understated.  The GAO strictly adheres to its regulations – including sending protest filings to the correct email address.

Case History

In the matter of The Continuum Engineering—Reconsideration, File: B-410298.2, Feb. 12, 2015, Continuum requested that GAO reconsider its decision to dismiss their protest of a Request for Quotations (RFQ) issued by the Department of State (DoS) for hotel rooms for U.S. government participants attending a climate-change convention held in Lima, Peru in December 2014.

Continuum protested that the firm that won the award (a giant multi-national hotel chain) wasn't eligible to win the award because the FedBizOpps webpage where the RFQ was posted indicated that the solicitation was set-aside for small disadvantaged businesses under the Small Business Administration’s 8(a) program, but the awardee was not an 8(a) certified firm.

Dismissed as Being Untimely

The GAO dismissed the protest because the protestor did not to file its comments on the agency report within the time required by the Bid Protest Regulations.

The DoS submitted its agency report to the GAO and the protester on September 29, 2014. Under the GAO's Bid Protest Regulations, the protestor was required to file its comments within 10 days of receiving the agency report -- on or before October 9, 2014, at 5:30 p.m.

On October 8, after business hours, the protestor e-mailed a copy of its comments to the individual e-mail addresses of the GAO attorney handling the case, the attorney’s supervisor, and a legal support staff member. The comments, however, were not sent to the e-mail address designated in the GAO's Bid Protest Regulations for the filing of protests: protests@gao.gov.

Request to Dismiss Granted by GAO

On October 10, the DoS requested that GAO dismiss the protest.  Later that same day, the protester forwarded its comments to the protests@gao.gov e-mail address, 11 days after the agency report was filed.  On October 21, the GAO dismissed the protest because the protestor's comments were not properly filed with GAO within 10 days.

This decision highlights the importance of being knowledgeable about bid protest regulations because, under other circumstances, the protest of this award to a non-small business entity may have been successful.

However, if a small business protestor either doesn't know, doesn't understand, or ignores protest rules, it does not matter how clear or strong its arguments are. The protest will fail due to rigid bid protest rules.

We recommend that those with a government procurement question, concern, or grievance not simply guess, try-hard or assume the government will help them, government rules (like filing deadlines and the use of the correct email address) that require strict adherence are not flexible and do not take fairness into consideration.  Thousands of bid protests are filed each year and the vast majority, even otherwise meritorious protests, are denied or dismissed.  Many of these dismissed protests are never even published because the reason for dismissal is tied to a failure to know or understand the rules.

About the AuthorJoe Whitcomb

Joe Whitcomb is the founder and president of Whitcomb, Selinsky, PC (WSM). In addition, he manages the firm and heads up the Government Procurement and International Business Transactions Law sections. As a result of his military service as a U.S. Army Ranger and as a non-commissioned officer in the Air Force, he learned mission accomplishment. While serving in the Air Force, he earned his Bachelor’s in Social Sciences and a Master’s in International Relations. His Master’s emphasis was on National Security and International Political Economics. After his military career, Joe attended law school at the University of Denver Sturm College of Law.


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