Protests: Timing is Everything

On Dec. 28, 2022, the U.S. Department of Energy (DOE) issued a Request for Quotations (RFQ) for scientific, engineering and technical support services. The RFQ stated that DOE intended to award a single blanket purchase agreement (BPA) under the U.S. General Services Administration (GSA) Federal Supply Schedule (FSS) program. The award was set aside for small businesses.

On May 16, 2023, DOE announced which offeror it had selected for award of the BPA. Soon after, a losing offeror, Allegheny Science & Technology Corporation (Allegheny), filed a size protest with the Small Business Administration (SBA) and a separate bid protest with the Government Accountability Office (GAO). The size protest speculated that the winning offeror did not qualify as a “small business,” while the GAO protest attacked the substance of DOE's evaluation.

On June 7, 2023, the SBA issued a Size Determination, dismissing Allegheny's size protest as untimely. The SBA found that the underlying procurement contemplated the award of a BPA under a long-term contract, GSA Schedule contract. And SBA regulations allow a size protest to be filed only at three points during the life of a long-term contract: (1) within five business days after the long-term contract is initially awarded; (2) within five business days after an option is exercised; and (3) within five business days after the award of an individual order, but only if the Contracting Officer (CO) requested recertification of size in connection with that order.

Here, the CO confirmed to the SBA that recertification was not required by the RFQ. Moreover, SBA's Office of Hearings and Appeals (OHA) has long held that a BPA is not a “contract,” an “option” or an “order.” Therefore, “a size protest on a BPA issued against a GSA Schedule contract is treated as a size protest on the GSA Schedule contract.” The awardee here was awarded its GSA contract on Sept. 7, 2022. To have been timely, then, any size protest was due by Sept. 14, 2022. Allegheny did not actually file its protest until May 22, 2023, after the BPA was awarded, so the protest was untimely.

On appeal, OHA upheld SBA's decision that Allegheny's size protest was untimely. (Separately, GAO dismissed in part and denied in part Allegheny's bid protest.)

Both SBA and GAO protests are subject to strict timeliness requirements. Miss those deadlines, and it won't matter much how good your factual and legal arguments are! (GAO, for good cause shown, or where it determines that a protest raises issues significant to the procurement system, may consider an untimely protest, but that authority is so rarely exercised that it is of no use to protestors.) There are other timeliness requirements, as well. In particular, a disappointed offeror's ability to stop the winning bidder from beginning performance of the awarded contract may depend on how quickly you submit a written request for a debriefing. That is important because agencies are more reluctant to change course when the awardee has already started work than when it hasn't.

So, watch that clock! Not sure what you are watching for? Or do you want to know more about size or GAO protests generally? Please contact this author or your regular Brown Rudnick contact.