Everyone loves heart warming TV shows, especially ones that start off ominously but then end very well. Take this fictional tale, for example:
A young woman receives notice that her father had a life-threatening accident. En route to the airport, however, events (some irritating or downright infuriating) cause serious delay. She makes it to her airport gate just after the cabin door closes. The plane is ready to pull back. Despondent, she begs the gate agent to allow her on, explaining her desperate need to make it home to her father. The airline employee, full of compassion and with a tear in his eye, bucks protocol, opens the plane door, and allows the woman to board. As if with the woman, we whisper a word of thanks to the nameless airline employee. And we recommit to extending more mercy in our own lives.
So what’s the point of this story? It illustrates the exact opposite of how GAO reacts to late filers. Instead of imbuing untimely protesters with the warm and fuzzies, it ruthlessly crushes any hope that a tardy protest might slide. Instead of the lovable airline employee above, GAO is the jaded and inflexible manager that prioritizes adhering to rules above all else.
We can’t get too upset at GAO. After all, it does have well-worn timeliness rules, so it’s up to protesters to make sure they’re followed.
GAO’s most recent timeliness drama played out in M R Pittman Group, LLC, B-419569 (Comp. Gen. May 5, 2021). The protester’s complaint? The agency shouldn’t have eliminated it, a large business, because the procurement was not set aside for small businesses.
The agency initially issued a pre-solicitation notice identifying the procurement as a small business set aside under NAICS code 811310. In the formal solicitation, however, the agency omitted a NAICS code despite including FAR provisions indicative of a small business set-aside.
The protester–again, a large business–submitted the apparent low bid. But a few days later, the agency eliminated the protester because it was an ineligible business under NAICS code 811310.
Not unsurprisingly, the protester disputed its ineligibility. It argued, not unreasonably, that the formal solicitation contained no NAICS code and that the agency could not rely on the NAICS code in the pre-solicitation notice. In the protester’s view, the solicitation was thus not a small business set-aside.
And this is where the story’s plot descends into the realm of unhappy endings. GAO found that the solicitation was patently ambiguous because it simultaneously incorporated the FAR’s set-aside provisions but omitted the NAICS code and size standard. In other words, the solicitation contained a glaring or obvious error.
Problem is, glaring and obvious errors must be protested before the bid due date. Yet, protester waited until after the due date (and its elimination) to protest. For that reason, the protest was doomed to dismissal.
Bottom line: when it comes to timeliness issues, don’t expect a favorable denouement at GAO. It will dismiss untimely protests every time. So, don’t end up like the protester, who unlike our protagonist above, was left to weep in the cold, sterile airport terminal.
If you have any questions about pre-award GAO protests or other government contracting issues, give us a call at 913-354-2630.