Diligence Pays in Timeliness of Protest
January 23, 2019
By: Lindsay Simmons
Sometimes diligence on the part of a disappointed offeror pays off. An instance where diligence was rewarded was addressed recently by the General Accountability Office in the Miltope protest, decided January 8, 2019.
Miltope protested its exclusion from the competitive range under a request for proposals (RFP) issued by the Department of the Army for multipurpose automatic test equipment, contending that the agency altered the settings on its sample prior to testing, contrary to the solicitation’s evaluation criteria, resulting in Miltope's lower test score and elimination from the competition.
At the outset of the protest, the agency moved to dismiss, arguing that Miltope’s protest was untimely because it knew the basis of its protest upon receipt of its pre-award debriefing -- that is, that Miltope knew it had been excluded from the competitive range because its sample had not achieved a high enough score. Miltope, in response, argued that its protest was timely because it only discovered the basis for its protest -- that the display resolution was set at 150 percent, rather than 100 percent -- well after the debriefing, when it conducted its own forensic testing.
Although GAO typically bends over backwards to find in the government's favor -- according agencies great deference -- in this instance the GAO saw fit to find Miltope's protest timely. Citing to its Bid Protest Regulations which contain strict rules for the timely submission of protests, the GAO repeated the well-known rule that a protest based on other than alleged improprieties in a solicitation must be filed no later than 10 days after the protester knew, or should have known, of the basis of protest, whichever is earlier. 4 C.F.R. § 21.2(a)(2). The GAO also noted that its timeliness rules "reflect the dual requirements of giving parties a fair opportunity to present their cases and resolving protests expeditiously without unduly disrupting or delaying the procurement process".
In this regard, the GAO found that Miltope's protest was "not a broad challenge to the protester’s elimination from the competitive range, but instead, [ ] a specific allegation of either mistake or misconduct on the part of the agency when it tested Miltope’s sample". Accordingly, although Miltope was advised in its debriefing that it had been eliminated from the competition because its sample did not achieve the benchmark score when tested by the Army, because Miltope did not know or even assume at the time of the debriefing that the Army tested its sample at a higher display resolution, the specific mistake was not known at the time of the debriefing. When Miltope's sample was returned, however, it immediately performed a forensic investigation and concluded that the display resolution setting on its sample must have been set at an improper level.
Because Miltope was able to demonstrate that it had been diligent in its efforts to determine the cause for its sample’s failure to meet the objective score, the GAO ruled that Miltope's protest was timely, stating that in circumstances such as those presented here, "we will resolve doubts over issues of timeliness in favor of protesters". Unfortunately, although timely, the protest did not succeed on the merits. But that's not the important point here. In this case, the key take away is that if, upon debriefing, a disappointed offeror does not fully understand the reason for its elimination from the competitive range (or failure to receive the award), it should drill down as quickly and effectively as possible until it does have a full understanding. In short, be diligent.
Lindsay Simmons is responsible for the contents of this article.
© Jackson Kelly PLLC 2019