GAO: Phone Call Triggered Timeliness Shot Clock, Not Agency Letter
Recently, the Government Accountability Office ("GAO") published a short bid protest decision that provides a cautionary reminder on its bid protest timeliness rules. Bottom line: a contracting officer's phone call regarding a procurement decision can, in some instances, start GAO's bid protest timeliness shot clock.
In Zero Waste Solutions, Inc., B-418550, March 31, 2020, 2020 CPD ¶ ___, the protester was providing solid waste management services at Fort Knox, Kentucky under a contract with the U.S. Army. Zero Waste's contract had a 1-year base period and four 1-year option periods.
During the base period, the agency learned that the Hardin County government published an RFP to provide the same waste services at Fort Knox. In January 2020, the contracting officer responded to an inquiry from Zero Waste regarding the Hardin County RFP and explained that the agency could save money by partnering with the local government for waste services and that the agency was considering it as an option.
On February 21, 2020, the contracting officer spoke with a Zero Waste representative and explained that the agency executed an intergovernmental support agreement ("IGSA") with Hardin County and that it would therefore not be exercising the next option period under Zero Waste's contract. On February 26, 2020, the contracting officer confirmed the substance of that conversation in a letter to Zero Waste.
On March 6, 2020, Zero Waste protested the agency's decision to award the IGSA because it “seeks services duplicative to an existing contract.” Unfortunately, however, GAO dismissed the protest as untimely because the protest was filed more than 10 days after the February 21 phone call. In concluding that the protest was untimely, GAO noted that its timeliness rules are strictly construed so as to avoid delays and disruptions in the procurement process, providing its rule in relevant part:
Bid Protest Regulations require that protests that are not based on alleged improprieties in a solicitation “shall be filed not later than 10 days after the basis of protest is known or should have been known (whichever is earlier). 4 C.F.R. § 21.2(a)(2).
This protest highlights that GAO's protest rules focus on when the contractor learns of the basis of protest, not necessarily the agency's method of communication. While an unsuccessful offeror notice or debriefing (note: there is a timeliness exception for "required" debriefings) is typically when offerors learn at least part of a basis of protest, this decision reminds contractors that, in some instances, a phone call can trigger GAO's protest timeliness shot clock.
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