Pre-award protests can be tricky. The U.S. Government Accountability Office (“GAO”) has jurisdiction to hear timely bid protests by interested parties regarding violations of procurement law or regulation. Under GAO rules, a pre-award protest challenging improprieties in a solicitation must be filed before the closing time for receipt of initial proposals or quotations. All other protests must be filed within ten days of when the protester first knew or should have known of the basis for filing a bid protest. In the case of Quanterion Solutions, Inc. (“QSI”), the GAO held that QSI’s protest challenging the Small Business Administration’s (“SBA’s”) acceptance of the Defense Threat Reduction Agency’s (“DTRA’s”) designation of a requirement for support services under the SBA’s section 8(a) business development program was just too late and dismissed the protest.
In the QSI case, on July 8, 2020, DTRA posted a notice in beta.SAM.gov that it planned to set aside a directed award to an 8(a) small business concern for provision of support services to the Defense Threat Reduction Information Analysis Center (“DTRIAC”) for fiscal years 2021-2026. The posting stated that the small business concern would be named “at a later date.” QSI learned of the notice and contacted DTRA. The Agency advised QSI on July 22, 2020, that the Agency had provided SBA with an 8(a) offering letter for this DTRIAC requirement on June 25 and that absent a response from the SBA, the Agency considered there to be “de facto acceptance.” In the ensuing July and August timeframe, QSI contacted SBA and DTRA for further information and on August 14, 2020, SBA notified QSI that an adverse impact determination was not required for the Agency to proceed with the 8(a) set-aside since this was a new requirement under 13 CFR 124.504(c)(1)(ii) and (2). QSI followed up with SBA to dispute the conclusion and SBA confirmed its position by email dated August 20. DTRA then posted a notice on beta.SAM.gov on August 20, 2020, stating that it planned to set aside the requirement for direct award to Kapili, an 8(a) small business.
Apparently, QSI continued to ask for information, because on August 26, 2020, DTRA informed QSI that a solicitation for the requirement had not been issued, but it also advised that the solicitation would not be made public. DTRA also confirmed to QSI on that same day that SBA had accepted the new requirement into the 8(a) program. Subsequently, a posting on beta.SAM.gov contained some information which, according to QSI, set a November 30, 2020 deadline for receipt of proposals for the DTRIAC requirement. QSI finally protested to the GAO on November 25, 2020, five days before this apparent deadline, challenging the procurement and alleging that the 8(a) set-aside required a cost impact analysis. The actual protest was filed three months after QSI was told that the SBA had accepted the DTRIAC requirement into the 8(a) program, a solicitation would not be publicly available, and Kapili was the intended recipient.
Under GAO Bid Protest Regulation 21.2(a)(1), a pre-award protest challenging alleged apparent improprieties in a solicitation must be filed before the closing time for receipt of initial proposals or quotations. All other protests must be filed within 10 calendar days after the protester first knew or should have known of the basis for the protest, whichever is earlier. GAO Bid Protest Regulation 21.2(a)(2). Although QSI filed its protest within five days of the date for submissions under the apparent deadline for the procurement, since its protest did not challenge improprieties in the solicitation, but rather challenged the determination that this was a new requirement and that a cost impact analysis was not required for the procurement, its protest was untimely. GAO held that Protester’s challenge, to be timely, needed to be filed within 10 days of when QSI first knew or should have known of the Agency and SBA determination that a cost impact analysis for the 8(a) set-aside was not required since this was a new requirement – under this reasoning, QSI should have protested within 10 days of August 26, 2020, when it first was informed of the SBA’s acceptance of the requirement into the 8(a) program.
The moral of this story – once you are in a position to have reason to believe there is a procurement violation, don’t wait to bring your protest or you may be too late. Here the protester knew of the SBA’s acceptance of the requirement into the 8(a) program and of the Agency’s intent to award to a specific entity. While arguably QSI might have protested even sooner – when it learned of the SBA’s deemed acceptance of the new requirement into the 8(a) program without a cost impact analysis — at the very latest, once QSI knew these facts and the identity of the intended awardee, its time for protesting was triggered. It could not sit on this knowledge until it saw a solicitation and wait until before submissions were due to finally protest. Its actions were simply too late to be considered timely.
Bid protests have very specific jurisdictional and timing requirements. Knowing them can make the difference between having your procurement concerns heard or not.
If you have questions about this advisory contact the author or your Stinson counsel.