Bite Your Tongue or Eat Your Words: GAO Reminds Contractors that Correspondence with the Agency Can Be Construed as an Agency-Level Protest, Doubling Down on a Timeliness Trap

When faced with a dissatisfying debriefing, a contractor may choose to respond to the agency to question or even rebut its evaluation.  However, the recent Government Accountability Office (GAO) decision in NikSoft Systems Corporation (NikSoft) serves as an important reminder that those communications can be interpreted as agency-level protests, with potential to render subsequent GAO protests untimely. 

On August 16, 2023, GAO dismissed a protest filed by NikSoft as untimely—in a decision that hinged upon GAO’s determination that emails sent by NikSoft to the agency constituted a prior, untimely agency-level protest.  NikSoft had submitted a proposal for an indefinite-delivery, indefinite-quantity contract for agile system development and support services for the Library of Congress (LOC).  On June 15, LOC notified NikSoft that its proposal was not among the most highly rated and was excluded from the competitive range.  The notification also provided a summary of the agency’s evaluation.  The next day, NikSoft requested a pre-award debriefing, which the LOC sent on June 30.  The debriefing included the same rationale as the exclusion notice, explaining the basis for the two technical weaknesses in NikSoft’s proposal and stating that NikSoft could submit additional questions to the agency no later than July 5.  NikSoft emailed LOC a response to its debriefing on July 5 at 10:01 p.m., contesting and providing a rebuttal to the two assessed weaknesses.  NikSoft’s email also asked the LOC to reevaluate and reconsider its proposal. 

The LOC deemed NikSoft’s email to have been received on July 6 and treated the email as an agency-level protest, which LOC denied as untimely because it was filed more than 10 days after NikSoft learned of the reasons for its exclusion from the competitive range.  The next day, July 7, NikSoft sent an email to the LOC, which the company labeled as an agency-level protest.  Having already considered NikSoft’s prior email to be an agency-level protest, the LOC treated the new email as an appeal of the contracting officer’s July 6 denial.  The agency’s senior procurement official denied the appeal.

On July 10, NikSoft filed a protest at GAO, arguing that the LOC did not reasonably evaluate its proposal and that its exclusion from the competitive range was improper.  The LOC moved to dismiss NikSoft’s protest as untimely, because it was not filed within 10 days of when NikSoft knew or had reason to know of the basis for its exclusion from the competitive range.  NikSoft countered that its protest was timely because it was filed within 10 days of the conclusion of the agency’s debriefing. 

If NikSoft had not first filed an agency-level protest, then its protest might have been timely under the “debriefing exception” set forth in 4 C.F.R. § 21.2(a)(2), which states that protests filed within 10 days after a required debriefing are timely.  But GAO found that (1) NikSoft knew or should have known of its basis of protest as of the June 15 notice of exclusion; (2) NikSoft’s correspondence with the LOC constituted an agency-level protest; (3) the agency-level protest was untimely, because it was filed more than 10 days after the notice of exclusion and, importantly, the debriefing exception does not extend the time for agency-level protests; and (4) although GAO’s Bid Protest Regulations allow protesters to file a GAO protest within 10 days of adverse agency action in response to an agency-level protest, that exception to the general timeliness rules can only be used if the agency-level protest itself was timely.  Thus, NikSoft’s agency-level protest and its later protest to GAO were each untimely.

This decision is an important reminder that GAO may construe a contractor’s communications with an agency as an agency-level protest and that, because agency-level protests are governed by the timeliness rules set forth in the FAR, a contractor may wind up with less time to protest than anticipated.

Key Takeaways

1. As we discussed here, contractors must use caution when corresponding with an agency because such correspondence may be deemed an agency-level protest—even if it is not intended as such (and even if the contractor expressly states that it is not an agency-level protest). Such deemed agency-level protests can significantly alter the timeline for filing a GAO protest and could potentially cause an otherwise timely protest to be untimely.
   
   
2. In the event that GAO concludes a protest is untimely based upon an agency-level protest, contractors should discuss with their protest counsel whether a protest to the Court of Federal Claims is feasible and appropriate.