If An RFP Is Defective, Don’t Wait To See If You’re The Awardee Before You Protest – You Will Be Too Late
August 5, 2014
By: Lindsay Simmons
In Del-Jen Education & Training Group, B-406897.3 (Comp. Gen. May 28, 2014), an incumbent Job Corps operator, Del-Jen, protested the award of the new contract for the operation of the Kittrell Job Corps Center (KJCC), arguing that the solicitation did not reflect the agency’s requirements because of changes occurring after the RFP was issued but before the award. Specifically, Del-Jen complained that the RFP included an estimate of 350 students – the figure upon which Del-Jen prepared its proposal – but pre-award reductions in DOL’s funding had reduced that number to 275 students. This reduction, however, was reflected in Del-Jen’s own 2013 bridge contract, awarded prior to the award under protest. Was Del-Jen’s post-award protest timely? Or was Del-Jen required to challenge the solicitation defect within 10 days of when it knew of the basis for protest rather than waiting until after the award? According to GAO, Del-Jen was too late.
In January 2013, new student enrollment at all Job Corps Centers was suspended as a result of DOL’s budgetary shortfalls. While DOL subsequently lifted this suspension, it also asked Del-Jen for recommendations on downsizing the KJCC. Based on Del-Jen’s input, the estimated on-board strength in Del-Jen’s incumbent contract was reduced from 350 to 275 students. Likewise, the short-term bridge contract subsequently awarded to Del-Jen for the KJCC estimated enrollment at 275 students. Despite these reductions, at no time prior to award of the contract under protest did Del-Jen inquire about whether the agency planned to amend the solicitation to reduce the student estimate.
GAO’s Bid Protest Regulations contain strict rules for the timely submission of protests. “Under these rules, a protest based on alleged improprieties in a solicitation that are apparent prior to the closing time for receipt of proposals must be filed before that time. 4 C.F.R. § 21.2(a)(1).” This rule, however, is silent regarding a situation where, as here, a defect arises after submission of proposals. According to GAO, “in such circumstances we have held that an offeror is obligated to protest the issue within 10 days after knowing of the reason for protest.” Thus, Del-Jen’s protest was untimely.
As the incumbent contractor, Del-Jen was fully aware of the facts upon which it based its protest long before it filed. Indeed in April 2013, Del-Jen was told that the estimated student enrollment for the KJCC would be reduced from 350 students to 275 students, and thereafter, its contracts were modified to reduce the estimated number of students for KJCC. Del-Jen also knew that DOL had in July 2013 amended the solicitation for another Job Corps Center procurement to reflect the reduced student enrollment estimates, but had not done so here. “While Del-Jen may have had no responsibility to notify the agency that its needs appeared to have changed, as the protester argues, we find that it was incumbent upon Del-Jen to protest this issue, which concerns the fundamental grounds rules of the procurement, within 10 days of when the basis of protest was known or should have been known.”
Another noteworthy aspect of this case is GAO’s remark regarding the agency’s refusal to provide Del-Jen with an opportunity to ask questions at its debriefing. While GAO “will not review the adequacy of an agency’s debriefing (as it is a procedural matter that does not affect the validity of an awarded contract or issued task order), a decision not to provide an offeror the opportunity to ask reasonable questions as part of a debriefing is not consistent with applicable procurement regulations, and may unnecessarily cause an unsuccessful offeror to file a bid protest in order to obtain such information.”
Lindsay Simmons is the attorney responsible for the content of this article.
© Jackson Kelly PLLC 2014