With the rise of the internet, it seems like everyone has become their own detective. Get a call from a number you don’t recognize? Punch the number into Google and do a reverse number search. If you’re anything like me, odds are it’s just the extended car warranty guy, again.
This sort of “detective work” has become increasingly easy thanks to the raise of the internet. So easy, in fact, that GAO has come to expect it from potential protesters. Those protesters that don’t live up to GAO’s expectations can find their protests cut short, very short.
GAO’s recent decision in Integration Technologies Group, Inc., B-419116.3 (Comp. Gen. Dec. 22, 2020) provides an excellent case study of what level of sleuthing GAO expects.
The decision addressed an Air Force procurement for digital printing and imaging services. The Air Force desired to establish a number of Blanket Purchase Orders (“BPAs”) for various digital printing services. The objective was to create a catalog of services the Air Force could order from.
Importantly, the solicitation required that goods supplied by the BPA contract holders be compliant with the Trade Agreements Act (“TAA”). As GAO explained in its decision, the TAA generally requires that goods procured by the federal government be acquired from the United States or designated countries.
Integration Technologies Group (“ITG”) submitted a quotation in response to the solicitation, along with 17 other offerors. Following its review, the Air Force awarded 6 BPAs. ITG was not among the awardees.
The Air Force notified ITG that it was not selected for award on August 11. The Air Force subsequently activated the BPA catalog on September 2.
On September 10, a competitor that had also not received an award, Coast to Coast Computer Products, Inc. (“CTC”), contracted ITG. CTC, it turns out, had a copy of the BPA catalog and identified a number of goods that were not TAA compliant. The following day, CTC sent ITG a collection of documents, including the GAO protest CTC filed challenging the TAA compliance issues.
After reviewing the documentation, ITG prepared its own GAO protest challenging the TAA compliance issues with the Air Force’s award and filed it on September 18, 2020.
The Air Force then requested dismissal. In its request, the Air Force leveraged GAO’s bid protest regulations, which establish specific time frames for filing protests. Specifically, GAO requires that protests challenging the evaluation of proposals “be filed not later than 10 days after the basis of protest is known or should have been known (whichever is earlier)[.]”
Remember, ITG learned the basis of its protest on September 11 and filed the protest a week later. But leaning into the “should have known” requirement, the Air Force argued ITG would have known about the TAA compliance issues earlier had it been more diligent about investigating the award, particularly since the BPA catalog went active on September 2. Thus, it argued, by September 18, the protest was about six days past when the basis should have been known.
GAO agreed with the Air Force. “A protester may not passively await information providing a basis for protest[,]” GAO explained, “[r]ather, a protester has an affirmative obligation to diligently pursue such information and a protester’s failure to utilize the most expeditious information-gathering approach under the circumstances may constitute a failure to meet its obligation in this regard.”
According to GAO, ITG did not demonstrate expediency developing its protest. There was no independent attempt to investigate the awardees or their TAA compliance. Instead, ITG waited until CTC essentially gifted it a protest to file with GAO. Due to the lack of urgency in ITG’s detective work, GAO dismissed the protest.
Ultimately, the Integration Technologies decision is a cautionary tale. Potential GAO protesters need to investigate protest issues with alacrity. Absent this diligent detective work, a potential protester may find itself in the unenviable position of Integration Technologies.
In short, GAO expects bid protesters to be armchair detectives. All those Facebook sleuthing skills may come in handy, after all.