In this final post on the timeliness requirements of filing bid protests before the GAO, we’ll examine the timeliness requirements in filing protests that include “comments” and “supplemental protests.”
The GAO Protest Process: Requirements for the Agency and Protestor when Filing and Responding to the Agency Report
As part of the GAO protest process, an agency has to file an agency report with the GAO and provide a copy to the protester within 30 days of being notified by the GAO that a protest has been filed – although agencies may seek an extension of time. See 4 C.F.R. § 21.3.
At a minimum, an agency report is required to include a statement of facts from the contracting officer and a memorandum of law by the agency counsel. Id. In general, the agency report will include a conformed copy of the solicitation, the offers of the awardee and the protester, and the agency’s evaluation documents.
A protester must file “comments” on the agency report within 10 days of receiving it, and any protest ground that was raised in the initial protest but not addressed in the comments is deemed abandoned. See 4 C.F.R. § 21.3(i). A protestor may request an enlargement of time to file its “comments” on the agency report. Id.
The Distinction Between “Comments” and “Supplemental Protests” Can Be a Trap for the Unwary
If the agency report reveals a new ground of protest – such as unequal treatment during the evaluation of offers – then a “supplemental protest” must also be raised within 10 days of receiving the agency report.
While a protester may request and receive additional time to file “comments” on the agency report, extensions of time apply to “comments” only, and not to “supplemental protests.”
The GAO has not developed its caselaw on the difference between “comments” and “supplemental protests,” and whether an issue to be raised is considered a comment or supplemental protest can be unclear.
I have had cases in which the GAO, sensibly looking to substance rather than titles, has found that arguments labelled by the protestor were in fact “supplemental protests” and vice versa.
Therefore, it is best to simply never seek an enlargement of time, and to file all responses to an agency report with the 10 days.
Joseph M. Goldstein is the Managing Partner of the Fort Lauderdale office of Shutts & Bowen LLP, where he is a member of the Business Litigation Practice Group. Joseph also practices out of the Tallahassee office.
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