Pre and Post Award Bid Protest

What should my GAO Bid Protest Timing Look Like?

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Bid Protest Timing Before the Award-The GAO regulations state that bid protests timing is based "upon alleged improprieties in a solicitation which are apparent prior to bid opening or the time set for receipt of initial proposals shall be filed prior to bid opening or the time set for receipt of initial proposals. In procurements where proposals are requested, alleged improprieties which do not exist in the initial solicitation but which are subsequently incorporated into the solicitation must be protested not later than the next closing time for receipt of proposals following the incorporation."

Solicitation Protest Must Take Place Before Proposals Due

Bid protest timing for "challenges to alleged solicitation improprieties must be raised prior to the date set for receipt of proposals. 4 CFR § 21.2(a)(1). All of EVG’s challenges were raised after that date.” Empire Veteran Group, Inc. B-408866.2,B-408866.3, Dec 17, 2013

“As an initial matter, we note that this case comes before us in an unusual procedural posture. On the one hand, challenges to the terms of a solicitation, to be timely, must be filed in our Office prior to the deadline for submitting proposals. 4 C.F.R. § 21.2(a)(1). This case, while apparently presenting a solicitation challenge, does not fall under that timeliness requirement because Blue Origin had no basis, prior to the submission of proposals and the remarks of the NASA administrator, to know that NASA interpreted the AFP in a manner that was inconsistent with Blue Origin’s interpretation.” Blue Origin, LLC B-408823, Dec 12, 2013

“The protester also alleges that the solicitation should have been set-aside for small business concerns; however, this post-award challenge is untimely and will not be considered.” Bid Protest Regulations, 4 C.F.R. § 21.2(a)(1) (2013). Emergency Vehicle Installations Corporation B-408682, Nov 27, 2013

Not Later than 10 days 

4 CFR (a)(2) states for other than those covered by paragraph bid protest timing must be not later than 10 days after the basis of protest is known or should have been known (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. In such cases, with respect to any protest basis which is known or should have been known either before or as a result of the debriefing, the initial protest shall not be filed before the debriefing date offered to the protester, but shall be filed not later than 10 days after the date on which the debriefing is held.

Bid Protest Timing Regulations "require that [bid] protests of other than alleged solicitation improprieties must be filed not later than 10 days after the basis of protest is known or should have been known." 4 C.F.R. § 21.2(a)(2) (2013). EVG learned that the agency considered its failure to demonstrate prime contractor experience a deficiency on August 15, when the agency first notified EVG of the exclusion of its proposal from further consideration. AR, Exh. I, Exclusion Notice. EVG’s failure to protest the agency’s evaluation until September 11, more than 10 days later, renders the matter untimely. Since EVG did not timely request a debriefing, it cannot avail itself of the later filing date authorized by our Bid Protest Regulations.” See Empire Veteran Group, Inc.

Even if this argument concerned a latent ambiguity, Savvee did not raise this challenge within 10 days of learning of the agency’s interpretation of this requirement; for this reason, the argument would in any case be untimely. See 4 C.F.R. § 21.2(a)(2). Savvee Consulting, IncB-408623,B-408623.2, Nov 8, 2013

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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