In REB ROWE Services, LLC; General Services Administration–Reconsideration, B-410001.6; B-410001.7 (Apr. 4, 2016), the Government Accountability Office (GAO) recently denied a request for reconsideration and clarified that protest grounds are interpreted broadly for timeliness purposes. This decision is a reminder for protestors and intervenors alike that seemingly untimely protest grounds may still be revived if they involve “the same essential elements” as timely filed protest allegations.

In the underlying procurement, the agency’s evaluation had determined the protestor’s price was unrealistic and assessed performance risk based upon the unrealistically low price.  The initial protest was timely filed, and the protestor filed comments on the agency report 11 days after the agency report was filed.  The protestor did not specifically invoke price realism until it filed its comments.  GAO sustained the protest based on the agency’s unreasonable price realism analysis, holding that the agency failed to evaluate the protestor’s unique staffing approach during the price realism analysis; “instead [the agency] simply compared [the protestor’s] price to the government estimate and other offerors’ prices.”

Both the awardee and the agency requested reconsideration of the sustained protest.

The request for reconsideration declined to challenge the GAO’s substantive conclusion and instead argued that the price realism protest allegation was untimely raised.  Specifically, the request argued that the protestor did not raise the price realism arguments until it filed its comments 11 days after receipt of the agency report, in violation of the requirement that protest grounds be raised within 10 days of when the basis for the allegation is known or should have been known.  See 4 C.F.R. § 21.2(a)(2).

GAO denied the request for reconsideration, holding that although the initial protest did not contain any express realism argument or even mention the term “price realism,” the protest did challenge the agency’s evaluation of the protestor’s staffing approach.  Specifically that the protestor challenged the reasonableness of the government price estimate, and GAO determined that “whether [the protestor] couched its challenges to the government estimate as an argument about price realism, or about adequate staffing, the essential elements in dispute were the same.”

Although this decision does not fundamentally change the timeliness rules for supplemental protests, it serves as reminder that GAO may consider seemingly untimely protest grounds if they involve “the same essential elements” as previously filed protest grounds.