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In that case, the protester (“CWS”) had successfully protested the award of a task order under an RFQ issued by the Coast Guard.  GAO found, among other things, that the Coast Guard had failed to properly conduct a price realism analysis.

On March 17, 2020, following CWS’s successful protest, the Coast Guard sent an email to the offerors that outlined its intended corrective action.  The email stated that the agency would no longer be considering price realism as part of the price evaluation.  The email also stated that “[a]n amendment will not be issued reflecting this change; this email serves as the official notification” (emphasis in original).

The offerors were not permitted to submit revised proposals, and instead were required to either “revalidate” their earlier price quotes or withdraw their proposals.  Offerors had to respond (i.e., either revalidate or withdraw) by noon on March 19 — two days after the Coast Guard’s email.

CWS filed a protest challenging the agency’s corrective action on March 27 — ten days after the Coast Guard’s email.[1]  The intervenor requested that the protest be dismissed as untimely.  According to the intervenor, CWS was obligated to file its protest by noon on March 19 — the deadline to revalidate or withdraw proposals.

GAO found CWS’s protest to be timely.  GAO relied on 4 C.F.R. § 21.2(a)(1), which states, in pertinent part:

  • “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.”
  • “If no closing time has been established, or if no further submissions are anticipated, any alleged solicitation improprieties must be protested within 10 days of when the alleged impropriety was known or should have been known.”

Because the agency had neither amended the solicitation nor established a “closing time for receipt of proposals” (i.e., under the first bullet), CWS timely filed its protest “within 10 days of when the alleged impropriety was known or should have been known” (i.e., under the second bullet).  The intervenor argued that the deadline to revalidate or withdraw proposals was the equivalent of a “closing time for receipt of proposals,” but GAO disagreed, explaining that there had been no opportunity for “further submissions.”

Questions of protest timing are often tricky — and they are particularly tricky in challenges to an agency’s corrective action.  This clarification will be useful in future protests.

 

 

[1]           CWS argued that the agency needed to issue a solicitation amendment and give offerors an opportunity to submit revised proposals if it wished to remove the price realism evaluation.  GAO agreed.

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Photo of Peter Terenzio Peter Terenzio

Mr. Terenzio advises contractors across a broad range of different issues. His practice includes bid protests, contract claims and disputes, regulatory counseling, and internal investigations.

Before joining the firm, Mr. Terenzio clerked for Chief Judge Susan G. Braden of the Court of Federal Claims.

Photo of Kayleigh Scalzo Kayleigh Scalzo

Kayleigh Scalzo represents government contractors in high-stakes litigation matters with the government and other private parties. She has litigated bid protests in a wide variety of forums, including the Government Accountability Office, U.S. Court of Federal Claims, U.S. Court of Appeals for the…

Kayleigh Scalzo represents government contractors in high-stakes litigation matters with the government and other private parties. She has litigated bid protests in a wide variety of forums, including the Government Accountability Office, U.S. Court of Federal Claims, U.S. Court of Appeals for the Federal Circuit, FAA Office of Dispute Resolution for Acquisition, Port Authority of New York and New Jersey, federal and state agencies, and state courts. She is also a co-head of the firm’s Claims, Disputes, and Other Litigation Affinity Group within the Government Contracts practice.

Kayleigh has particular experience navigating state and local procurement matters at both ends of the contract lifecycle, including bid protests and termination matters. In recent years, she has advised and represented clients in connection with procurements in Alaska, Arizona, California, the District of Columbia, Illinois, Indiana, Kansas, New Jersey, New York, Pennsylvania, Tennessee, Texas, and Virginia.

Kayleigh is a frequent speaker on bid protest issues, including the unique challenges of protests in state and local jurisdictions.

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