United States: January 2017 Protest Roundup

Two common themes run through the cases we have chosen for this month's bid protest roundup.  The first three decisions explore some pitfalls relating to the timeliness of proposals and protest grounds.  The last two highlight the fact that the Government Accountability Office's (GAO) well-known deference to agency discretion does not extend to matters where an agency cannot (or will not) document any reasonable basis for a challenged action.  We have summarized the most interesting points of these protests below.

Sumaria Systems, Inc., B-413508.2, Dec. 29, 2016

Protesters ordinarily have until the date set for proposal submission to file a pre-award protest.  That rule is not ironclad, however.  A few pre-award errors must be raised within ten days of when the protest ground was known or should have been known.  In addition, as the protester learned in Sumaria, when a GAO protest is preceded by an agency-level protest, the GAO protest must be filed within ten days of when the agency takes adverse action on the agency-level protest.  Because the protester got these timing rules confused in this case, the GAO dismissed as untimely one of its protest grounds.

The original request for proposals (RFP) contemplated award to the lowest-price technically acceptable (LPTA) offeror.  While Sumaria (the eventual protester) was lowest-priced, it was found technically unacceptable because it did not provide qualifications for its contract program manager.  In the first round of protests, the protester argued that the RFP did not require it to provide qualifications for its contract program manager.  The agency took voluntary corrective action, announcing its intention to terminate award, amend the solicitation, obtain revised proposals, and make a new award decision.  GAO then dismissed the protest as academic.

The protester then filed an agency-level protest, arguing that the agency should simply award the contract to the protester as the lowest-price, technically acceptable offeror, rather than amend the RFP.  On September 14, the agency denied the protest and, on the same day, amended the RFP along the lines originally announced.  Proposals were due October 3.

On September 30 – before the date set for proposal submission, but more than ten days after the agency denied the agency-level protest – the protester filed a GAO protest challenging both the agency decision to take corrective action (other than simply awarding the protester the contract) and the terms of the new solicitation.

GAO distinguished between the challenge to do anything other than award the contract to the protester and the challenge to the terms of the amended RFP.  The former was the subject of an agency-level protest.  GAO's timeliness regulations require such protests to be filed at GAO within ten days of adverse agency action (such as a denial), regardless of whether different timeliness rules would ordinarily apply.  In other words, the ten-day rule trumped the ordinary pre-award rule in this case.  Because the protester filed at the GAO more than ten days after the agency denied the agency-level protest, GAO dismissed the first protest ground as untimely.  (See our previous blog post for this and other peculiarities of agency-level protests.)

GAO then turned to the second ground: whether the terms of the amended RFP were unduly restrictive of competition or otherwise unreasonable.  Because this ground was not raised in the agency-level protest, which preceded the amendment of the RFP, it fell under the ordinary rule for challenges to alleged solicitation improprieties:  it had to be filed before the date set for proposal submission, which it was.  GAO proceeded to deny this ground on the merits.

Takeaway: Bid protest timeliness rules are complicated.  Most contractors are familiar with the general rule of thumb:  if you become aware of a problem pre-award, you must protest before the next date set for submission of proposals; if you become aware of a problem post-award, you must protest within ten days.  As Sumaria learned, however, there are several exceptions to this rule, and even some exceptions to the exceptions.  If you are not certain of which rule governs your potential protest, contact a procurement attorney as early as possible.

Washingtonian Coach Corp., B-413809, Dec. 28, 2016

Timeliness rules affect not only protests, but also proposals.  This is often referred to as the "Late Is Late" rule, and it generally is applied without mercy.

Washingtonian Coach involved an RFP that required offerors to submit electronic proposals to the email addresses of the contracting officer and contract specialist by 2 p.m. on September 16.  Approximately 40 minutes before the deadline, the protester emailed its proposal to the two addresses listed in the RFP.  To confirm receipt, the protester attempted to call the contract specialist at 1:55, and various times after the 2 p.m. deadline.  Also after the deadline, the protester sent emails to both email addresses asking for confirmation of receipt of the proposal.  The agency officials had not received the proposal.  Instead of responding to the protester, they emailed the agency help desk to determine if any other emails had been received from the protester.  Five days later, the help desk informed the contracting officer and contract specialist that the protester had sent eight emails on September 16, but all were blocked before reaching the system's local exchange level because they exceeded ten megabytes in size.  Four other offerors successfully submitted proposals without any technical problems.  The agency accordingly rejected the protester's proposal because it was not received at the designated email addresses by the time set in the RFP.

The excluded offeror protested, arguing that its proposal was properly and timely submitted.  The offeror also argued that it was not proper to be penalized for sending a large email because the RFP made no mention of the size limit of the agency's email system.

Although recognizing the harshness of the "Late Is Late" rule, the GAO held that it is an offeror's responsibility to submit proposals sufficiently in advance to ensure timely receipt by the agency.  What matters is not the time an offeror presses "send," but the time that the designated agency official or office receives the proposal.  GAO also noted that the solicitation incorporated FAR 52.212-1(f)(2)(i)(A), which deems an electronically submitted proposal timely if it is received at the initial point of entry into the government system before 5 p.m. of the day before proposals are due, regardless of whether the designated agency officials actually receive the proposal by the RFP's deadline.  By waiting until less than an hour before proposals were due, however, the protester could not rely on that exception to the timeliness rule.  Accordingly, GAO denied the protest.

Takeaway: Late is late.  Case law and regulations provide for certain limited exceptions to this rule, but offerors should always leave plenty of time to ensure their proposals are received – and receipt is confirmed – by the RFP's deadline.  For electronic submissions, note any size limitations, try to avoid unnecessarily large files, and do not rest until receipt is confirmed.  Zipping files may help avoid problems with size limits.

Global Dynamics, LLC v. United States, 2016 WL 7974999 (Fed. Cl. 2016)

In Global Dynamics, the Court of Federal Claims denied a challenge to an allegedly improper price analysis as untimely.  In this fixed-price procurement, the solicitation did not clearly put offerors on notice that the agency would consider price realism – i.e., whether prices were too low – which ordinarily means that price realism will not be evaluated.  ( See our earlier post on price realism here.)  During discussions, the agency noted the protester's low price in comparison to the other offerors, which the protester alleged led it to raise its price and thus lose its price advantage over other offerors.

When the offeror lost the contract due in part to having a higher price than its competitors, the protester went to court, arguing that the agency conducted a price realism analysis that was not permitted by the RFP and engaged in misleading discussions by leading the offeror unnecessarily to raise its price.  On the misleading discussions ground, the court disagreed that the offeror was misled:  the agency truthfully had observed that the offeror's price was comparatively low, and did not request a higher price.

As to whether the agency performed a price realism analysis that the RFP did not allow, the court observed that the protester itself alleged that it understood from its discussions that the agency was doing exactly that.  Because the solicitation did not clearly provide for a price realism analysis, but the agency allegedly caused the protester to believe the agency was performing one anyway, the court held that the protester was on notice of an ambiguity regarding the ground rules of the procurement and should have sought clarification or protested before submitting its final proposal revision.  By waiting until after award to protest, the protester waived its right to object to the price realism analysis (if one even occurred).

This case is interesting because it highlights a timing dilemma that sometimes arises.  Apparent solicitation improprieties and ambiguities can be protested only before the date for submitting proposals.  Misevaluations, on the other hand, generally can be protested only after award has been made.  When the agency indicates during discussions that it will evaluate proposals in a manner inconsistent with the solicitation, is that notice of an ambiguity in the solicitation (requiring a pre-award protest), or is it the foreshadowing of a misevaluation (requiring a post-award protest)?  The dividing line is not always clear, and guessing wrong may result in a protest being dismissed as premature, or (as happened in this case) as untimely.

Takeaway:  Seek clarification if it appears the agency is evaluating proposals in a manner inconsistent with the solicitation, or if you do not understand what a particular discussion topic means.  If it appears the agency may be changing the ground rules of a procurement, explore your options with a procurement attorney before the next date set for proposal submission.

Threat Management Group, LLC, B-413729, Dec. 21, 2016

MoFo successfully litigated this interesting case involving an out-of-scope task order award.  The protester previously had performed a contract for contingency training services.  As its contract came to an end, the agency decided not to hold a new competition for those ongoing requirements, but instead simply issued the work as a task order to another firm, which held an Indefinite-Delivery Indefinite-Quantity (IDIQ) contract for explosive ordnance disposal support services.

When the agency's action came to light, the protester challenged the task order as outside the scope of the IDIQ contract under which the task order was issued, and argued that the Competition in Contracting Act required the agency to compete the work on a full and open basis.

The IDIQ contract's performance work statement (PWS) included various support services, including certain training services.  The agency argued before GAO that the new task order fell within the scope of the existing IDIQ contract, and therefore a new competition was not required.  GAO disagreed.  GAO noted that it normally will compare the statement of work of the protested task order with the statement of work of the underlying IDIQ contract to determine if a task order is out of scope.  That was not possible here, however, because the agency did not issue a statement of work or performance work statement for the task order at all, other than requiring 13 FTEs to provide "EOD [explosive ordnance disposal] Support Services."  In the absence of any documentation of the specific services requested, GAO was forced to review monthly progress reports that the contractor provided to the agency under the new task order, and found them apparently to be outside the scope of the IDIQ PWS.  Despite multiple requests for additional information, the agency failed to provide sufficient documentation of the work performed, and GAO noted there were inconsistent statements in the series of declarations agency personnel submitted in an attempt to justify the task order award.  Given the dearth of documentation, contradictory declarations by agency personnel, and evidence suggesting the work was out of scope, GAO sustained the protest.

Takeaway:  An agency may not issue task or delivery orders that exceed the scope of the underlying IDIQ contract, and agencies are at significant risk if they fail to document a reasonable basis for the actions they take.  It is also worth noting that protests of out-of-scope task orders, such as this one, are an exception to the normal rule that task order protests can be brought only at the GAO and only for task orders exceeding statutorily determined dollar values.

Walker Development & Trading Group, Inc., B-413924, Jan. 12, 2017

Agencies enjoy great discretion in deciding to cancel a solicitation, and GAO seldom sustains a protest challenging such a decision.  GAO sustained this protest, however, where the agency canceled a solicitation (and simply gave the work to the incumbent contractor, who the protester alleged "always receives these laundry contracts") but failed to give GAO a consistent explanation or sufficient documentation of the true reason for the cancelation.

The agency issued a Request for Quotations (RFQ) for laundry services, anticipating an IDIQ, fixed-price contract.  The agency received quotations, revised the solicitation, and received revised quotations.  The agency then issued a notice stating that the solicitation had been canceled due to "legal guidance."  The agency then apparently exercised its rights under FAR 52.217-8 to extend its existing laundry contract with the incumbent contractor to continue procuring services from it.  This protest followed.

The protester argued that the agency lacked a reasonable basis to cancel the solicitation, that the agency's stated rationale for canceling the solicitation was a pretext, and that the agency's actual motivation was to make a de facto sole-source award to the incumbent.  On the due date of the agency report, the agency filed an "Agency response and motion to dismiss" with merely three attachments.  The attachments showed only that the agency awarded "emergency laundry services" to the incumbent and extended its contract.  Inexplicably, the contract extension bore the solicitation number of the canceled RFQ.  GAO informed the agency that its response was incomplete and requested that it address the cancelation of the solicitation.  The agency supplemented its record with a two-page narrative by the contract specialist explaining that the agency did not make an award because the lowest-priced offeror's quotation was below the solicitation's minimum order amount.  After another request by the GAO, the agency submitted a brief supplemental legal memorandum that provided no additional insight into the cancelation issue.  After a third request by the GAO, the agency stated that it had produced all relevant documents and had nothing further to add.

An obviously frustrated GAO found that the agency had blown every chance for providing a rational explanation for its decision to cancel the competition and give the work to the incumbent.  Accordingly, the GAO made the adverse inference that no rational explanation existed and sustained the protest.

Takeaway:  GAO affords agencies great deference in canceling a solicitation on a reasonable basis, but that deference is not unlimited.  When an agency cannot explain and document a reasonable and coherent basis for cancelation, GAO may sustain a protest.

Because of the generality of this update, the information provided herein may not be applicable in all situations and should not be acted upon without specific legal advice based on particular situations.

© Morrison & Foerster LLP. All rights reserved

To print this article, all you need is to be registered on Mondaq.com.

Click to Login as an existing user or Register so you can print this article.

In association with
Related Video
Up-coming Events Search
Font Size:
Mondaq on Twitter
Register for Access and our Free Biweekly Alert for
This service is completely free. Access 250,000 archived articles from 100+ countries and get a personalised email twice a week covering developments (and yes, our lawyers like to think you’ve read our Disclaimer).
Email Address
Company Name
Confirm Password
Mondaq Topics -- Select your Interests
 Law Performance
 Law Practice
 Media & IT
 Real Estate
 Wealth Mgt
Asia Pacific
European Union
Latin America
Middle East
United States
Worldwide Updates
Mondaq Ltd requires you to register and provide information that personally identifies you, including what sort of information you are interested in, for three primary purposes:
  • To allow you to personalize the Mondaq websites you are visiting.
  • To enable features such as password reminder, newsletter alerts, email a colleague, and linking from Mondaq (and its affiliate sites) to your website.
  • To produce demographic feedback for our information providers who provide information free for your use.
  • Mondaq (and its affiliate sites) do not sell or provide your details to third parties other than information providers. The reason we provide our information providers with this information is so that they can measure the response their articles are receiving and provide you with information about their products and services.
    If you do not want us to provide your name and email address you may opt out by clicking here
    If you do not wish to receive any future announcements of products and services offered by Mondaq you may opt out by clicking here

    Terms & Conditions and Privacy Statement

    Mondaq.com (the Website) is owned and managed by Mondaq Ltd and as a user you are granted a non-exclusive, revocable license to access the Website under its terms and conditions of use. Your use of the Website constitutes your agreement to the following terms and conditions of use. Mondaq Ltd may terminate your use of the Website if you are in breach of these terms and conditions or if Mondaq Ltd decides to terminate your license of use for whatever reason.

    Use of www.mondaq.com

    You may use the Website but are required to register as a user if you wish to read the full text of the content and articles available (the Content). You may not modify, publish, transmit, transfer or sell, reproduce, create derivative works from, distribute, perform, link, display, or in any way exploit any of the Content, in whole or in part, except as expressly permitted in these terms & conditions or with the prior written consent of Mondaq Ltd. You may not use electronic or other means to extract details or information about Mondaq.com’s content, users or contributors in order to offer them any services or products which compete directly or indirectly with Mondaq Ltd’s services and products.


    Mondaq Ltd and/or its respective suppliers make no representations about the suitability of the information contained in the documents and related graphics published on this server for any purpose. All such documents and related graphics are provided "as is" without warranty of any kind. Mondaq Ltd and/or its respective suppliers hereby disclaim all warranties and conditions with regard to this information, including all implied warranties and conditions of merchantability, fitness for a particular purpose, title and non-infringement. In no event shall Mondaq Ltd and/or its respective suppliers be liable for any special, indirect or consequential damages or any damages whatsoever resulting from loss of use, data or profits, whether in an action of contract, negligence or other tortious action, arising out of or in connection with the use or performance of information available from this server.

    The documents and related graphics published on this server could include technical inaccuracies or typographical errors. Changes are periodically added to the information herein. Mondaq Ltd and/or its respective suppliers may make improvements and/or changes in the product(s) and/or the program(s) described herein at any time.


    Mondaq Ltd requires you to register and provide information that personally identifies you, including what sort of information you are interested in, for three primary purposes:

    • To allow you to personalize the Mondaq websites you are visiting.
    • To enable features such as password reminder, newsletter alerts, email a colleague, and linking from Mondaq (and its affiliate sites) to your website.
    • To produce demographic feedback for our information providers who provide information free for your use.

    Mondaq (and its affiliate sites) do not sell or provide your details to third parties other than information providers. The reason we provide our information providers with this information is so that they can measure the response their articles are receiving and provide you with information about their products and services.

    Information Collection and Use

    We require site users to register with Mondaq (and its affiliate sites) to view the free information on the site. We also collect information from our users at several different points on the websites: this is so that we can customise the sites according to individual usage, provide 'session-aware' functionality, and ensure that content is acquired and developed appropriately. This gives us an overall picture of our user profiles, which in turn shows to our Editorial Contributors the type of person they are reaching by posting articles on Mondaq (and its affiliate sites) – meaning more free content for registered users.

    We are only able to provide the material on the Mondaq (and its affiliate sites) site free to site visitors because we can pass on information about the pages that users are viewing and the personal information users provide to us (e.g. email addresses) to reputable contributing firms such as law firms who author those pages. We do not sell or rent information to anyone else other than the authors of those pages, who may change from time to time. Should you wish us not to disclose your details to any of these parties, please tick the box above or tick the box marked "Opt out of Registration Information Disclosure" on the Your Profile page. We and our author organisations may only contact you via email or other means if you allow us to do so. Users can opt out of contact when they register on the site, or send an email to unsubscribe@mondaq.com with “no disclosure” in the subject heading

    Mondaq News Alerts

    In order to receive Mondaq News Alerts, users have to complete a separate registration form. This is a personalised service where users choose regions and topics of interest and we send it only to those users who have requested it. Users can stop receiving these Alerts by going to the Mondaq News Alerts page and deselecting all interest areas. In the same way users can amend their personal preferences to add or remove subject areas.


    A cookie is a small text file written to a user’s hard drive that contains an identifying user number. The cookies do not contain any personal information about users. We use the cookie so users do not have to log in every time they use the service and the cookie will automatically expire if you do not visit the Mondaq website (or its affiliate sites) for 12 months. We also use the cookie to personalise a user's experience of the site (for example to show information specific to a user's region). As the Mondaq sites are fully personalised and cookies are essential to its core technology the site will function unpredictably with browsers that do not support cookies - or where cookies are disabled (in these circumstances we advise you to attempt to locate the information you require elsewhere on the web). However if you are concerned about the presence of a Mondaq cookie on your machine you can also choose to expire the cookie immediately (remove it) by selecting the 'Log Off' menu option as the last thing you do when you use the site.

    Some of our business partners may use cookies on our site (for example, advertisers). However, we have no access to or control over these cookies and we are not aware of any at present that do so.

    Log Files

    We use IP addresses to analyse trends, administer the site, track movement, and gather broad demographic information for aggregate use. IP addresses are not linked to personally identifiable information.


    This web site contains links to other sites. Please be aware that Mondaq (or its affiliate sites) are not responsible for the privacy practices of such other sites. We encourage our users to be aware when they leave our site and to read the privacy statements of these third party sites. This privacy statement applies solely to information collected by this Web site.

    Surveys & Contests

    From time-to-time our site requests information from users via surveys or contests. Participation in these surveys or contests is completely voluntary and the user therefore has a choice whether or not to disclose any information requested. Information requested may include contact information (such as name and delivery address), and demographic information (such as postcode, age level). Contact information will be used to notify the winners and award prizes. Survey information will be used for purposes of monitoring or improving the functionality of the site.


    If a user elects to use our referral service for informing a friend about our site, we ask them for the friend’s name and email address. Mondaq stores this information and may contact the friend to invite them to register with Mondaq, but they will not be contacted more than once. The friend may contact Mondaq to request the removal of this information from our database.


    From time to time Mondaq may send you emails promoting Mondaq services including new services. You may opt out of receiving such emails by clicking below.

    *** If you do not wish to receive any future announcements of services offered by Mondaq you may opt out by clicking here .


    This website takes every reasonable precaution to protect our users’ information. When users submit sensitive information via the website, your information is protected using firewalls and other security technology. If you have any questions about the security at our website, you can send an email to webmaster@mondaq.com.

    Correcting/Updating Personal Information

    If a user’s personally identifiable information changes (such as postcode), or if a user no longer desires our service, we will endeavour to provide a way to correct, update or remove that user’s personal data provided to us. This can usually be done at the “Your Profile” page or by sending an email to EditorialAdvisor@mondaq.com.

    Notification of Changes

    If we decide to change our Terms & Conditions or Privacy Policy, we will post those changes on our site so our users are always aware of what information we collect, how we use it, and under what circumstances, if any, we disclose it. If at any point we decide to use personally identifiable information in a manner different from that stated at the time it was collected, we will notify users by way of an email. Users will have a choice as to whether or not we use their information in this different manner. We will use information in accordance with the privacy policy under which the information was collected.

    How to contact Mondaq

    You can contact us with comments or queries at enquiries@mondaq.com.

    If for some reason you believe Mondaq Ltd. has not adhered to these principles, please notify us by e-mail at problems@mondaq.com and we will use commercially reasonable efforts to determine and correct the problem promptly.

    By clicking Register you state you have read and agree to our Terms and Conditions