You Snooze,You Lose Your Right to Protest

In a recent United States Court of Federal Claims (COFC) decision, a protester’s lack of diligence in pursuing its protest got it tossed out of court.  The Court found that the company was not an interested party to challenge an agency’s sole source award decision. The protester failed to notice for three weeks a Federal Business Opportunities website synopsis of a contracting activity’s intent to make a sole source award.  As a result, the competitor failed to submit a required statement of capability to the agency to establish its capability to meet the agency’s requirement. 
The agency issued the award on September 25th based on the synopsis posted on September 17th.  After discovering the award, the protester’s first action was a complaint to its Congressman on October 11, 2010. The Congressman forwarded a letter to the agency and the agency replied to the Congressman on November 23rd, almost six weeks later.  The agency reported back that because the protester had not responded to the synopsis or filed a timely protest, the agency would not consider the protester’s complaint. After next submitting a challenge to the sole source directly to the agency, the protester filed with the COFC on December 13, 2010.
The Court concluded that the protester’s failure to check the website and notice the synopsis in a timely fashion (the protester found the notice almost three weeks after publication) was the reason that the company lost out on this contract and that this failure justified dismissal of its protest.  The Court further noted that any delays in protesting were not the agency’s fault, since it was the protester’s decision “to pursue recourse through a Congressman rather than immediate resort to a protest.”  Digitalis Education Solutions, Inc. v. The United States, Morris & Lee d/b/a Science First, Intervenor. COFC No. 10-855, Feb. 11, 2011.
Significantly, the Court’s position is very much the same as the Government Accountability Office’s (GAO).  At GAO, a firm must submit timely a statement of capability in response to a sole-source synopsis; otherwise, the firm is not an interested party to pursue its protest at GAO. VSE Corporation; Johnson Controls World Services, Inc., B-290452.3; B-290452.4; B-290452.5., May 23, 2005, 2005 CPD 103.  Also, filing a complaint with your Congressman concerning an agency’s contracting action does not toll the GAO timeliness rules.  P&P Brothers General Services, B-227031, Apr. 28, 1987, 87-1 CPD 449.
Protests are a serious business and a valuable right. In order to have your protest considered on the merits, time is of the essence and you must act diligently and know and adhere to the protest filing rules at the COFC and GAO.
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