A Protest Filed After the Closing Date
On March 1, an agency issues a solicitation for grounds maintenance services with proposals due March 31. The solicitation states that award will be made to the lowest-priced technically acceptable offeror. On March 10, the agency issues Amendment 0002, which changes the evaluation to a best-value tradeoff and adds a requirement that the contractor have five years of experience with a specific work-order software. All offerors, including Offeror A, acknowledge the amendment. Offeror A submits a proposal on March 31 but does not protest. On April 5, after learning that its price is 8% higher than another offeror's, Offeror A files a GAO protest alleging that the amendment is unduly restrictive and that the software requirement favors the incumbent. No award has been made. The CO must decide how to proceed.
1. Is Offeror A's protest timely at GAO? Explain the rule.
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No. GAO's timeliness rules are in 4 C.F.R. § 21.2. A protest based on an alleged impropriety in a solicitation that is apparent before the closing date must be filed before the closing date. Amendment 0002 was issued March 10, and Offeror A acknowledged it. The alleged defect-the best-value change and the five-year software experience requirement-was apparent from the amendment. Proposals were due March 31. Offeror A filed on April 5, after the closing date. The protest is therefore untimely as to the solicitation terms.
The fact that Offeror A learned on April 5 that its price was 8% higher does not restart the clock; the basis for the protest was known earlier. GAO should dismiss the protest. Offeror A could have protested before March 31, or it could preserve a challenge to the agency's evaluation after award, filed within 10 days of a debriefing.
2. What is the agency's obligation to stay performance or withhold award?
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The automatic stay under 31 U.S.C. 3553(c)(1) applies when a timely protest is filed before award. Here the protest is untimely, but the agency should not simply ignore it. The CO should coordinate with legal counsel and wait for GAO to dismiss or otherwise act. If GAO dismisses the protest as untimely, the agency may proceed with award. If GAO requests a report or the protest is not dismissed promptly, the agency should consider whether a stay is required.
The CO should document the timeline and the basis for proceeding. The agency should not use the protest as an excuse for an indefinite delay, but it also should not award in a way that creates unnecessary risk. A written legal determination is prudent before award.
3. Even if the protest is untimely, what should the CO do about the merits of the allegation?
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The CO should review the amendment on the merits. Under FAR 11.002, specifications cannot be unduly restrictive. The CO should ask whether the five-year experience with the specific software is reasonably related to the need and whether it excludes responsible sources without a legitimate basis. If the requirement is not justified, the CO should amend the solicitation or document the justification before award. If the requirement is justified, the CO should document the market research and the operational reason.
The CO should also review whether the change from lowest-price technically acceptable to best-value tradeoff was properly authorized and whether it was synopsized or otherwise announced. Correcting a real defect now is better than defending a timely post-award protest later. The CO should not treat GAO's dismissal as a finding that the solicitation is lawful.