Am I Already Too Late? GAO Finds Offeror's Pre-Proposal Communications with Agency Started the Protest Clock
Last month, the Government Accountability Office (GAO) denied as untimely a pre-award protest where the agency had responded unfavorably to a letter from the protestor and started the clock for filing a GAO protest. The decision in Science and Technology Corporation, B-420216 (Jan. 3, 2022), serves as a cautionary reminder that pre-proposal communications with an agency can constitute an agency-level protest that triggers GAO's protest timeline.
Summary of Decision
On September 7, 2021, the National Centers for Environmental Prediction (NCEP), a subset of the National Weather Service (which is itself a part of the National Oceanic and Atmospheric Administration (NOAA)), issued a fair opportunity request for proposals (FORFP) for scientific support services to holders of a NOAA IDIQ contract that included a key personnel requirement of five lead physical scientists.
On September 13, 2021, potential bidder Science and Technology Corporation (STC) sent a "letter of concern" to the director of the Western Acquisition Division of NOAA, asserting that the key personnel requirement was too stringent and disproportionately favored the incumbent contractor. The letter also requested that the required number of scientists be decreased to two. NOAA responded that there was a "legitimate need" for the key personnel requirement, reinforcing this viewpoint in a subsequent amendment to the FORFP released September 15, 2021, which indicated that key personnel requirements would not be changing. On October 1, 2021, prior to the proposal submission deadline, STC filed a pre-award protest at GAO challenging the key personnel requirement as unduly restrictive and improperly favoring the incumbent.
In reviewing STC's protest, GAO reiterated the general rule that pre-award protests alleging obvious improprieties in a solicitation are considered timely if filed before the due date for receipt of the proposal. This general rule does not apply, however, when an agency takes adverse action on a timely agency-level protest of the solicitation. In these cases, the protester must file its protest at GAO within 10 days of learning about the agency's initial adverse action.
GAO found that "STC's September 13 letter to the NOAA acquisition director was an agency-level protest" because it was a written statement that conveyed an intent to protest an agency procurement action. NOAA's response on September 14 disagreeing with STC's interpretation of the key personnel requirement and refusing to change those requirements constituted adverse agency action that triggered STC's 10 days to file a protest. GAO broadly defined "adverse agency action" to include "action or inaction by an agency that is prejudicial to the position taken in the protest."
To avoid being untimely to GAO, offerors who question the terms of a solicitation in pre-proposal exchanges with an agency must answer two simple questions for themselves:
- Have I complained too much? In raising "concerns" to an agency about the terms of a solicitation, offerors must take care to avoid language that can be construed as a direct challenge of an agency procurement decision, and thus an agency-level protest. There are no safe or magic words per se and GAO will look to the content and context of an offeror's message to determine whether a communication constitutes an agency-level protest.
- Has the agency already rejected my complaints? At the same time, offerors should be ultra-careful in assessing whether an agency's response to pre-proposal communications could be "adverse action" on an agency-level protest, as such action may have already started the clock on a GAO protest deadline. This can be an extremely fine line to walk. While an offeror may view an agency's response as leaving room for interpretation or being subject to future amendment, there is a risk GAO may see it differently and conclude that the agency has denied the offeror's request for relief.
If you have questions about the Science and Technology Corporation decision or managing pre-proposal communications with U.S. government customers, please contact one of the Miller & Chevalier attorneys listed below:
The information contained in this communication is not intended as legal advice or as an opinion on specific facts. This information is not intended to create, and receipt of it does not constitute, a lawyer-client relationship. For more information, please contact one of the senders or your existing Miller & Chevalier lawyer contact. The invitation to contact the firm and its lawyers is not to be construed as a solicitation for legal work. Any new lawyer-client relationship will be confirmed in writing.
This, and related communications, are protected by copyright laws and treaties. You may make a single copy for personal use. You may make copies for others, but not for commercial purposes. If you give a copy to anyone else, it must be in its original, unmodified form, and must include all attributions of authorship, copyright notices, and republication notices. Except as described above, it is unlawful to copy, republish, redistribute, and/or alter this presentation without prior written consent of the copyright holder.