A pair of recent bid protest decisions serve to remind contractors of the strict requirements for filing of protests before the Government Accountability Office (GAO). While many contractors are generally aware of the rapidly expiring filing periods of post-award bid protests, and jurisdictional limits on task order protests, even the most seasoned contractors can confuse the labyrinthine web of GAO filing requirements, as shown by these recent cases.
In Gorod Shtor, B-411284 (May 22, 2015), Gorod Shtor protested the award of an indefinite-delivery, indefinite-quantity contract to provide the U.S. Embassy in Moscow with draperies. Gorod Shtor received the notice of award on March 10, requested an agency debriefing, and received a written debriefing on March 17. Gorod Shtor then filed its protest on March 27.
Gorod Shtor was presumably acting under the belief that a protest could be timely filed within 10 days of the date of the debriefing, pursuant to 4 C.F.R. § 21.2(a)(2). However, the bid protest regulations state that 10-day post-debriefing filing period applies when only a debriefing is required. Because this procurement was structured as a commercial item acquisition with simplified procedures under FAR Part 13, Gorod Shtor was not entitled to a “required” debriefing. See FAR 13.106-3(d) (“If a supplier requests information on an award that was based on factors other than price alone, a brief explanation of the basis for the contract award decision shall be provided.”). Consequently, the 10-day period to file the protest began from the date of the award notice, not the date of the written debriefing, and the protest was dismissed as untimely.
The Gorod Shtor decision reminds disappointed offerors that debriefings are not required for all procurements. In addition to simplified acquisitions under FAR Part 13, acquisitions under FAR Part 8, the Brooks Act, and Broad Agency Announcements are among those that do not require debriefings. Disappointed offerors should consult with their counsel before the award decision to ensure that they understand the timing requirements for protests related to a particular procurement.
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In another recent decision, Karthik Consulting, LLC, B-411496 (May 26, 2015), Karthik Consulting protested the Navy’s award of a SeaPort-E task order for administration of two student internship programs. The SeaPort-E task order report announced that the value of the task order at over $33 million; however, the Navy stated that $30 million of the figure was for cash stipends provided to the interns participating in the program and therefore the actual value of the task order was less than $2 million. The Navy argued that GAO lacked jurisdiction over this protest as the task order was valued at under $10 million. See 10 U.S.C. § 2304c(e)(1).
GAO agreed with the Navy and dismissed the protest. Although the awardee’s proposed price was well over $10 million, GAO held “that there are circumstances in which the successful contractor’s proposed price is not the sole determinant of the value of an order” and instead that “in certain cases, the operative inquiry concerns the value of the goods or services being provided, and for which the contractor is, in fact, being compensated, under the order.” (citing Qwest Gov’t Servs., Inc., B-404845 (Mar. 25, 2011)). Without the pass-through stipends provided to the interns, the value of the task order was under $10 million, leaving GAO without jurisdiction over the protest. Disappointed offerors on task order awards should be mindful of the Karthik Consulting decision in assessing whether protest jurisdiction exists for specific task order awards.