Late is late: the GAO bid protest timeliness rules, and how they can be a model for boards of contract appeals

Army Lawyer, Nov, 2007 by Eugene Y. Kim

C. Timeliness of Bid Protests Filed with the GAO

Under the GAO's Bid Protest Regulations, the question of when to file a bid protest is generally determined by the substantive arguments that are advanced in the protest, and the forum within which the protester chooses to obtain relief. (45)

The resolution of these two issues will determine which timeliness provisions are applicable, and can make the difference between a summary dismissal of a protest, or a decision on the merits. (46)

1. The Substantive Arguments

The timeliness provisions of the GAO's Bid Protest Regulations contemplate two basic types of substantive arguments that can be advanced in protests: arguments that allege the presence of defects in a solicitation (i.e., "improprieties in a solicitation"), and arguments that allege other defects in the procurement process (i.e., "all other cases"). (47) In order to be considered on the merits, each protest argument "must independently satisfy GAO's timeliness requirements." (48)

a. "Improprieties in a Solicitation" (49)

As a general rule, a protest that alleges a defect in a solicitation must be filed with the GAO prior to the deadline for the opening of bids, or before the deadline for the submission of initial proposals, if the defect is apparent on its face. (50) If a defect in a solicitation does not become apparent until after bids are opened or initial proposals are submitted, a protest must be filed with the GAO within ten days "after the defect became apparent." (51) In the case of a solicitation for a negotiated procurement, a protest against a defect contained in an amendment to the solicitation must be filed with the GAO "before the next closing time established for submitting proposals." (52)

b. "All Other Cases" (53)

A protester who wishes to challenge a solicitation based on an argument that does not fall within the scope of 4 C.F.R. 21.2(a)(1) must raise the issue with the GAO within ten days of the date that the protester became aware of or should have become aware of the issue, whichever state of knowledge occurs earlier. (54) The basis for a protest can be a protester's actual or constructive knowledge. (55) Absence of actual and constructive knowledge of a protest issue will toll the timeliness provisions of the Bid Protest Regulations. (56) In addition, in the case of a negotiated procurement in which a debriefing is requested by the protester (and required by law), the protester has ten days to file a protest based on issues raised by the debriefing, but may not file a protest prior to the debriefing date offered by the agency. (57) A protest issue that runs afoul of the special timeliness provisions for negotiated procurements involving a debriefing is subject to summary dismissal by the GAO. (58)

2. Agency-level Protests

The timeliness provisions of the GAO's Bid Protest Regulations impose special rules for the submission of protests that are initially filed with procuring agencies, and later filed with the GAO. (59) In order for an agency-level protest to be timely, it must be filed within the timeframes established by 4 C.F.R. 21.2(a)(1) and (a)(2) (the same provisions that govern the timely filing of protests with the GAO), unless the agency has stricter filing rules, in which case the agency's rules are controlling. (60) An untimely agency-level protest that is filed later with the GAO will also be considered untimely. (61) A protest that was initially filed in a timely manner with the agency and subsequently filed with the GAO must be submitted "within 10 days of actual or constructive knowledge of initial adverse agency action." (62) An adverse agency action is not limited to a formal denial of an agency-level protest. (63)