The Squeaky Wheel Gets Denied Part II: GAO Reiterates the Need for Contractor Vigilance When Communicating Pre-Award Procurement Issues With the Agency

We recently wrote about when pre-award agency communications affect GAO's protest timeliness rules, reinforcing the careful attention contractors must pay to pre-award communications with the agency, lest those communications be later considered protests. As an example, we highlighted GAO's decision in Science & Technology Corp., B-420416, dismissing as untimely a protester's pre-award challenge to the solicitation terms because the protest was filed more than 10 days after the protester received an adverse agency response to an email, which GAO found to be an agency protest. GAO again demonstrated the need for such caution in a different context in the protest of The Ulysses Group, LLC, B-420566, where GAO found a protester's pre-award communications to the agency did not constitute an agency-level protest, and thus did not preserve the protester's rights, despite ambiguous responses from the agency.

In Ulysses Group, the Air Force issued a commercial solutions opening (CSO) seeking proposals for "innovative solutions related to five identified 'strategic capabilities'" from small business concerns. The CSO stated that all proposals must be submitted through the Department of Defense SBIR/small business technology transfer innovation portal (DISP), an online submission website. The CSO also indicated no exceptions would be made to its February 10, 2022, 12:00 pm Eastern deadline. A complete proposal constituted six separate volumes. The protester, Ulysses, began seeking to upload its proposal several days before the deadline, and was able to upload all required volumes except its technical proposal. Each time Ulysses attempted to upload the technical proposal, the upload would suspend before completion, and shortly thereafter DSIP would notify Ulysses that the upload attempt failed.

Ulysses reached out to the DISP support desk for assistance with uploading the proposal two days before the deadline, on February 8. The support desk provided troubleshooting advice, but Ulysses replied that the advice was the same as was posted on the website, which Ulysses had already tried without success. That same day Ulysses also wrote a separate email to the SBIR program team "suggest[ing] there was a technical issue with DSIP, express[ing] frustration with the DISP support desk, and stat[ing] that the agency should have provided a backup proposal submission method." The contracting officer received this message and responded to Ulysses, confirming the requirement for offerors to use DSIP, but holding out hope, stating: "In some rare circumstances, the Air Force solicitation Contracting Officer will accept proposal documents outside the system with concurrence from Air Force Legal Counsel. However, these situations will not be considered until the proposal submission deadline has passed and includes review of DSIP system forensics."

After sending multiple additional emails to the helpdesk and others, and repeated additional attempts to post it, Ulysses ultimately did not upload its technical proposal before the February 10 deadline. The next day, Ulysses filed an agency-level protest, describing the events and changes leading up to the deadline, criticizing the agency's help desk capabilities, and requesting the agency to accept its proposal. On February 18, 2022 the agency stated its refusal to accept Ulysses's proposal, in effect denying the agency-level protest, and eight days later, Ulysses filed a protest with GAO challenging the agency's refusal to accept its proposal.

In one ground of protest, Ulysses complained that "the solicitation's requirement to submit proposals via DSIP without any alternative submission method was overly restrictive of competition." The agency sought to dismiss this argument as an untimely challenge to the solicitation that was not raised until after the deadline for proposal submission. Ulysses, however, urged that its February 8 email to the agency objecting to the solicitation's DISP submission requirement was an agency-level protest. The agency's refusal to accept its proposal on February 18, Ulysses contends, was the adverse agency action on its agency-level protest. Therefore, per Ulysses, its protest filed on February 26 was within GAO's ten-day timeliness rule. GAO disagreed with the protest, finding Ulysses's February 8 email did "not request specific relief or ruling from the agency." Instead, the email merely "states a suggestion that the agency have a backup email to submit proposals," but "does not specifically request that the agency establish an alternative submission process." Because GAO found the email was not an agency-level protest and the email was the only pre-submission deadline exchange with the contracting officer, Ulysses's post-deadline challenge to the solicitation terms was deemed untimely and dismissed. GAO took no account of the communication from the Contracting Officer holding out the prospect of post-deadline relief.

This case presents yet another cautionary tale of what can go wrong when exchanging pre-award communications with the agency. The Ulysses Group decision illustrates that the critical difference between an agency-level protest and a mere expression of displeasure can be a few words. But that difference can make or break a contractor's ability to object to prejudicial agency action. GAO will only find an offeror's email to the agency, however strongly-worded, is an agency-level protest if it: (1) expresses specific dissatisfaction with an agency procurement action, and (2) requests specific relief, not merely a "suggestion, hope, or expectation."  Moreover, while not specifically addressed in the decision, these circumstances drive home the point that when the Contracting Officer makes a statement or informal communication that contradicts the stated terms of the Solicitation, the explicit terms always win. Contractors must make clear, conscious decisions of whether they are intending to trigger agency protest rules before submission deadlines. Failure to speak up, or not making your intentions clear, can both have negative unintended consequences. Contractors must judge the contents of written communications to and from the agency against legal standards when pursuing procurement opportunities, and should assume that any doubt will be weighed in favor of the agency. Sometimes, speaking up is critical to preserve one's rights, but classification of the communication as an agency-level protest—or not—can have serious impacts on a contractors' rights, including on its ability to compete.

© Arnold & Porter Kaye Scholer LLP 2022 All Rights Reserved. This Advisory is intended to be a general summary of the law and does not constitute legal advice. You should consult with counsel to determine applicable legal requirements in a specific fact situation.