INFOTECH AND THE LAW

In Protesting Awards, Timing Matters Most

Devon Hewitt

By Devon Hewitt

Although the number of protests has declined steadily over the past few years, protests are still a fact of life for many government contractors.

In order for a protest to be valid and ultimately successful, it must be filed timely.

Protests generally are filed in one of three venues: the procuring agency, the General Accounting Office (GAO), or the U.S. Court of Federal Claims. The court does not have any specific timeliness rules. Most protests filed at the court, however, include a request for a temporary restraining order or a preliminary injunction.

Such a request for extraordinary relief typically includes an allegation by the protester that urgent circumstances exist requiring immediate court intervention. In order to be taken seriously by the court, therefore, a protester that considers filing a protest at the court should act quickly.

The timeliness rules for protests filed at the agency level or the GAO are similar. The basic rule in these forums is that protests, amendments or subsequent supplements should be filed no later than 10 calendar days after the basis of the protest is known or should have been known by the protester, whichever is earlier.

There are important exceptions. Protests based on alleged "apparent improprieties" in the solicitation or request for proposals must be filed before bid opening or the closing date for receipt of proposals.

Protests based on the North Atlantic Treaty Organization rules may be filed in 10 working, as opposed to calendar, days.

Protests based on agency conduct affecting the integrity of a procurement cannot be filed without the protester first reporting the alleged improper conduct to the procuring agency contracting officer. The contracting officer, in turn, must receive notice of the procurement integrity violation within 14 calendar days of the protester's discovery of the violation.

The most important exception to the basic 10 calendar days rule exists in the context of negotiated procurements. A protest of agency action in a negotiated procurement ? where a debriefing has been requested by the protester, and the agency is required to provide the protester with a debriefing ? cannot be filed until after the debriefing has been held.

An agency is only required to provide a debriefing in negotiated acquisitions if the protester has requested a debriefing, in writing, within three calendar days of receiving notice that the protester has been eliminated from the competitive range or that a contract has been awarded to another offerer.

After an agency conducts a debriefing, the protester must file the protest within 10 calendar days of the debriefing.

This exception to the timeliness rule is designed to discourage filing defensive protests and to encourage an agency practice of prompt and meaningful debriefings. This exception has two wrinkles.

First, an agency may delay holding a debriefing for an offerer excluded from the competitive range until after contract award. According to curious language in the Federal Acquisition Regulation, FAR 15.505(a)(2), a debriefing for an offerer eliminated from the competitive range that has been delayed until after contract award may "affect the timeliness of any protest filed subsequent to the debriefing."

Given this ambiguity, most offerers excluded from the competitive range choose to file a protest immediately rather than risk the protest being deemed untimely if filed following the debriefing.

The second wrinkle concerns a protester's ability to have the contract performance by the awardee "stayed" by the agency pending the outcome of a post-award protest. Protesters consider a stay essential to the success of a protest as it restricts the ability of the agency to further solidify its allegiance with the contract awardee.

The stay also allows the GAO and the agency to consider the procurement allegations independently and without the fear of a large termination for convenience claim by the awardee.

In order to obtain a stay of contract performance by the contract awardee, the protester must file a protest within 10 calendar days of contract award or, where a debriefing is requested and required, within five calendar days of the debriefing, whichever is later.

Both the GAO and agencies may consider protests that are otherwise untimely for good cause or if the protest raises an issue significant to the general procurement system. These instances are very rare; GAO and the agencies generally are quite stringent in enforcing the timeliness rules.

Devon Hewitt is a partner of Government Practices at ShawPittman in McLean, Va. She can be reached at devon.hewitt@shawpittman.com.

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