The Squeaky Wheel Gets Dismissed: GAO Reinforces the Need for Contractor Vigilance When Raising Pre-Award Issues With the Agency

Communications between agencies and offerors during a competition regarding the terms of a solicitation come with both upsides and risks. Contractors often reach out to agency counterparts to discuss the terms of solicitations, even outside the bounds of traditional, formal industry "Q&A" submissions. These communications are not improper, and can be helpful in clarifying issues and notifying the agency of possible problems. However, contractors must be aware that when they raise specific issues with the agency prior to award, and ask for specific relief, it is likely that they have filed a de facto agency-level protest. If the agency does not provide the requested relief, the offeror must escalate the protest to the GAO within 10 days of learning of the agency's decision in order to pursue that issue at GAO. As GAO recently demonstrated in the case of Science and Technology Corporation, B-420216, the notice of the agency's decision can be indirect, but still turn out to be fatal to a later-filed protest at GAO.

On September 7, 2020, the National Centers for Environmental Prediction (NCEP), a division of the National Oceanic and Atmospheric Administration (NOAA) responsible for global environmental modeling, issued a solicitation to holders of an existing task order contract. The solicitation sought support for sophisticated data analysis and other scientific requirements of the agency, and specified five lead physical scientists as key personnel. Science and Technology Corporation (STC), a holder of the task order contract, was concerned that the key personnel requirement was “competition-inhibiting,” and on September 13, 2021, submitted a letter of concern to the agency requesting the key personnel requirement be reduced to two scientists. On September 14, the agency responded, declining to reduce the requirement and explaining the five key personnel were “an important aspect of the requirement.” The next day, on September 15, the agency issued an amendment to the solicitation, responding to offerors’ questions. One question asked whether the agency would reduce or remove the key personnel requirement, and the agency stated it would not reduce the requirement. STC took no further action until it filed a GAO protest challenging the key personnel requirement two weeks later on October 1, 2021, three days before the submission deadline.

The agency sought dismissal of the protest at GAO arguing that STC’s protest was untimely and should be dismissed, because STC’s September 13 letter of concern was an agency-level protest, and STC had waited more than 10 days before filing at GAO. GAO agreed, reasoning that, although not styled as a protest, the letter expressed a specific concern with the agency’s solicitation and explicitly requested corrective action by solicitation amendment. The letter of concern to the agency was therefore an agency protest, which the agency had denied by "adverse agency action" on September 14.

The Protester objected that the agency's letter in response had been equivocal, and had not entirely "shut the door on STC’s concerns.” GAO disagreed, but said that it didn't matter anyway, as the agency had reinforced its position the next day, September 15, when it issued an amendment reiterating its position that the key personnel requirement would remain the same. GAO made clear that this amendment, just as much as the direct letter, was an announcement of adverse agency action which started the clock on STC to protest at the GAO. Since STC filed its protest on October 1, the GAO protest of the key personnel requirement was untimely.

This case presents a cautionary tale to contractors about what can go wrong during pre-award communications with the agency. Contractors should be careful when communicating concerns to the agency about the contents of the solicitation. When those communications (1) express a concern about the solicitation, and (2) request agency action, GAO will construe those communications as agency-level protests regardless of how they are styled. Additionally, to the extent a communication initiates an agency-level protest, contractors should pay close attention to the agency’s response, which, if adverse directly or indirectly, will trigger the 10-day period within which to file a protest with GAO. The agency’s adverse response could be in the form of a written response or indirect refusal to take corrective action. Contractors should therefore take note of when agency actions or inactions are adverse to any formal concerns raised to the agency and raise those grounds with counsel on a timely basis to avoid automatic dismissal for failure to comply with GAO’s 10-day timeliness rule.

© Arnold & Porter Kaye Scholer LLP 2022 All Rights Reserved. This blog post 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.