Filing a Timely Protest

You've just got off the phone with a Contracting Officer about deleting a restrictive specification in a recently issued solicitation you would like to respond to, but the CO refuses to change the spec. Or you were just notified that a contract you were bidding for was awarded to a vendor whose equipment clearly doesn't meet the solicitation's specifications.

You are mad as hell and don't want to take it anymore. You want to file a protest.

If that is your decision, then the absolute first thing you must do is to determine the deadline for filing a timely protest. Otherwise, if you file late, the protest will be dismissed even if your case on the merits was a winner.

The deadline for filing a protest depends on the particular stage in the procurement process. Basically, if the agency's impropriety arises out of the solicitation document itself, then you must protest before the due date for receipt of proposals (or bid opening date in an IFB). On the other hand, if the agency's mistake arises out of its evaluation of proposals or award of a contract, then you must protest within 10 calendar days after the date you first learned of the agency's adverse action. These principles apply both for protests filed with an agency or with the Government Accountability Office (GAO).

What sort of improprieties arise out of the solicitation and require a protest before the due date for receipt of proposals? Here are some examples:

• The specifications are unduly restrictive and don't allow your company to bid.
• The specifications are obviously ambiguous, preventing you from determining what the agency really needs.
• The evaluation plan is unclear, preventing you from understanding how the offeror will be selected for award.

  In comparison, here are some examples of adverse agency actions arising after initial submission:

• In a RFP, the agency has rejected your company from the competitive range even though you believe your price is reasonable and your offer is technically excellent.
• In an IFB or RFP, the agency has awarded to another vendor whose equipment clearly doesn't meet the solicitation's mandatory requirements.
• In a RFP, the agency misapplied the evaluation criteria or applied criteria that weren't clearly stated in the solicitation.
• In an IFB, the agency rejected your bid as non-responsive for failing to satisfy a minor formality, even though your bid is the lowest priced.

The "adverse agency action" that triggers the protest is an action by the agency that violates the applicable procurement regulations. An adverse agency action can be a telephone call from a Contracting Officer advising a vendor that its bid has been rejected from competition, or a letter notifying the vendor of award to another contractor. Don't wait for an agency to confirm a telephone call in writing or for the agency to respond to a Freedom for Information Act Request. If you aren't sure when to file, then file immediately. You can always withdraw a protest if you file too early; you're out of luck if you file too late.

Protests are serious matters and not to be undertaken lightly. A protest is disruptive to the procurement process and requires the agency to draft a report in response. However, if an agency has violated the regulations, a protest should be filed. Protests are an integral part of the procurement process that helps keep agencies in compliance with their own rules and regulations. Vendors cannot be expected to invest in the federal market and spend thousands of dollars in bid preparation if agencies won't play by the rules.