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

3. Exceptions

The GAO's Bid Protest Regulations recognize only two circumstances under which an otherwise untimely protest may still be considered: protests that are untimely for good cause, and protests that "present novel or significant issues of interest to the procurement community." (64) In order to successfully invoke the good cause exception, a protester must demonstrate that it "faced an extremely limited timeframe within which to challenge the solicitation provisions at issue." (65) Consistent with the GAO's traditionally strict interpretation of its timeliness regulations, the Comptroller General has narrowly defined the duration of the aforementioned period to one day or less. (66) In order to successfully invoke the novel or significant issue exception, a protester must demonstrate that a protest ground satisfies two criteria: (1) the issue has not already been reviewed by the GAO, and (2) the issue is "of widespread interest to the procurement community." (67) The GAO will not apply the novel or significant issue exception in cases where the applicable law is settled and the GAO's decision "would be limited to the facts of that particular case and of primary interest only to the parties involved." (68) The determination of whether a protest raises a novel or significant issue is fact-specific and will be made by the GAO on a case-by-case basis. (69) The GAO will apply the good cause and novel or significant issue exceptions only "sparingly." (70) The GAO's strong disinclination to review untimely protests was re-emphasized in a recent decision by the Comptroller General, in which the GAO refused to recognize the alleged complexity of the protest grounds at issue or the protester's status as a small business as sufficient grounds upon which to justify waiving its timeliness rules:

   Giving weight to such considerations would undermine the
   bright-line nature of our timeliness rules, which serve as a
   predictable guide to the procurement community and, as noted above,
   strike an appropriate balance between two principal goals of our
   bid protest forum, giving parties a fair opportunity to present
   their cases and resolving protests expeditiously without unduly
   disrupting or delaying the procurement process. (71)

D. Timeliness Provisions Impacting Post-Filing Litigation at the GAO

In addition to strictly adhering to its rules on the timely filing of bid protests, the GAO also vigorously enforces its rules on the timely litigation of bid protests. (72) These procedural rules primarily impact the discovery phase of litigation, which has led at least one commentator to claim that "discovery is severely limited" (73) at the GAO. However, it bears repeating that the GAO's Bid Protest Regulations are intended to ensure that it will be able to "comply with the [CICA] mandate that [it] resolve bid protests expeditiously." (74)

Following receipt of telephonic notification from the GAO that it received a bid protest against a particular procurement, the procuring agency has thirty days to submit an agency report to the GAO. (75) The agency report typically includes "a statement of the relevant facts (and an estimate of the contract value) signed by the contracting officer, a memorandum of law explaining the agency's position in terms of procurement law, and a list of copies of all relevant documents, or portions of documents not previously furnished." (76) Although the thirty day deadline for the submission of agency reports places an enormous strain on government personnel and resources, this short-lived negative impact is substantially outweighed by the fact that the agency report process dramatically accelerates the discovery process. Although protesters are able to request specific documents both before and after an agency report is submitted, protesters are usually afforded only two days to make such requests. (77) The procuring activity, in turn, has only two days to produce documents that are requested by the protester. (78) Since the discovery phase in other litigation forums has the potential to take months or even years to complete (a luxury that the CICA does not provide to the GAO), the "GAO expects parties initially to attempt to resolve document disputes themselves." (79) If a dispute cannot be resolved, there is little room for doubt as to what will follow next: "GAO will resolve the matter." (80)