Government Contracts Monitor

Protesting Too Early Can Be as Bad as Protesting Too Late

July 19, 2017

When the Government Accountability Office (GAO) dismisses a protest due to timing issues, the problem almost always involves protests submitted after the protest period ends. But late filing protesters are not the only ones who suffer timing-based dismissals. As the recent decision in 2M Research Services, LLC, B-413993.4 (June 19, 2017) makes clear, filing too early--before the protest period begins--can lead to the same outcome as filing too late.

The protest involved a challenge by 2M Research Services, LLC (2M) to a decision made by the Department of Homeland Security, Federal Emergency Management Agency (FEMA) during corrective action in response an earlier protest by 2M. That earlier protest had focused on the agency’s evaluation and award decision and resulted in FEMA’s deciding to: (i) reevaluate past performance; (ii) review compliance with the limitations on subcontracting clause; (iii) decide whether to award with or without discussions and conduct price evaluations as necessary; and (iv) issue a new technical source selection evaluation board consensus report and a new source selection decision document. After the GAO rejected 2M’s challenge to the proposed corrective action and dismissed the protest, the agency implemented the proposed reevaluation. Along the way, it decided to conduct discussions with all offerors in the competitive range, including 2M.

After FEMA posed written discussion questions to 2M and 2M responded, the agency asked 2M for a final proposal revision (FPR). The day before 2M submitted its FPR, however, it filed this protest contending that FEMA improperly included the proposal of Vision Planning & Consulting, LLC (VPC) in the competitive range. More particularly, 2M argued that VPC’s proposal contains material deficiencies--relating to staffing, key personnel, and past performance--that cannot be corrected as a result of discussions. Relying on the same reasons on which it based its previous protest, 2M alleged that the agency could not reasonably conclude that VPC’s proposal should be included in the competitive range.

2M claims that it learned of VPC’s inclusion on May 10, 2017, seven days before its protest was filed. Apparently based on that timeline, 2M believed that it met the protest timing requirements.

The GAO disagreed, but not because 2M had filed too late.

It found “no basis to review 2M’s allegations at this time”, explaining that while the GAO has considered protest grounds like those articulated by 2M, the issue was not addressed in those cases until after the agency actually made an award decision. Further, and perhaps more importantly, when the agency has yet to make an award decision, allegations that a competitor should not have been included in the competitive range are premature. As the GAO pointed out, the agency could ultimately decide to award the contract to the protester. If the protester does not win the award, however, it can then raise whatever evaluation errors it deems appropriate.

Obviously, being dismissed for filing too early is not the same as being dismissed for filing too late, if only because the protester will either get “another bite at the apple” or not need one because it won the award. But contractors should still be mindful of the costs, in terms of time, effort, and its relationship with the procuring agency, of protesting something that has not yet adversely impacted the outcome of the procurement. It’s much better to be patient and only file your protest when you can challenge alleged errors that have actually prejudiced you.

Attorneys

Lindsay Simmons