A recent decision from the General Accountability Office ("GAO"), has clarified the rule addressing timeliness for protesting the award of task orders under Federal Supply Schedule ("FSS") contracts. In clarifying the rule, GAO has significantly shortened the time period upon which a disappointed bidder may file a protest under a schedule contract. Generally, when an agency conducts a formal competition under the FSS program for the award of a task order contract, GAO reviews the agency’s action to ensure that the evaluation was reasonable and consistent with the terms of the solicitation. However, GAO will not conduct such a review if a protest action is filed untimely. Accordingly, untimely filed protests will be summarily dismissed by GAO without consideration of the merits of the action.

Bid protest regulations contain strict rules for the timely submission of protests. The timeliness rules reflect the dual requirements of giving parties a fair opportunity to present their cases, while at the same time providing a forum to resolve protests expeditiously without disrupting or delaying the procurement process. According to the protest rules, when a protest is based on other than alleged improprieties in a solicitation, the protest must be filed not later than 10 days after the protester knew or should have known the basis for protest. The exception to this general rule addresses protests that challenge "a procurement conducted on the basis of competitive proposals under which a debriefing is requested and, when requested, is required." In such cases, with respect to any protest basis which is known or should have been known either before or following the debriefing, the protest must be filed not later than 10 days after the date on which the debriefing is held.

In a recent case decision, GAO found that the above exception to the timeliness rule does not apply to FSS contracts. See MIL Corp., B-297508, B-297508.2, Comp. Gen. Dec. (2006). GAO noted that the exception extends to protests involving procurements where a debriefing is required by law. According to procurement law and regulations, an agency is required to debrief an unsuccessful offeror who timely requests a debriefing in cases where a contract is awarded on the basis of competitive proposals. In MIL, GAO concluded that FSS contracts are not conducted on the basis of competitive proposals. In reaching this conclusion, GAO found that although FSS program procurements may involve the use of enhanced competitive procedures (i.e., the comparison of technical approaches and technical qualifications of vendors, the consideration of factors other than price), the term "competitive proposals" is a term of art which does not extend to FSS contracts. Therefore, an agency awarding an FSS task order contract is not required to provide a debriefing to disappointed vendors. However, the agency may grant a debriefing at its discretion. In any event, the exception to the protest timeliness rule does not apply to the award of FSS task order contracts because a debriefing, even if granted, is not required by law or regulation.

Therefore, in protest actions involving FSS contracts, GAO’s interpretation of the timeliness rule dictates that the protester must file the action within 10 days of which it knew or should have known the basis for protest. According to the GAO in MIL, the proper time for filing such a protest is within 10 days of receipt of notice that the protester is not receiving the FSS task order award. Such is the case because the exception to the general rule allowing the filing of a protest after a required debriefing does not apply to FSS contracts.

This article is presented for informational purposes only and is not intended to constitute legal advice.