Government Accountability Office (GAO) bid protest regulations provide government agencies and protestors 10 days to file their requests for reconsideration after the basis for reconsideration is known or should have been known. This typically means that in the absence of significant development or changes, the parties have 10 days from the issuance of the GAO’s protest decision to file their request for reconsideration. Requests to change or modify GAO’s recommended remedy are also considered requests for reconsideration and when filing such requests, the parties must adhere to the 10-day filing deadline. If the request for reconsideration is untimely, the GAO may not consider it, regardless of the party filing the request. This is because GAO regulations do not contain a provision granting the office discretion to consider untimely requests for reconsideration, even when a significant issue is involved or for good cause shown. Thus, unsuccessful protestors who wish to file requests for reconsideration with the GAO should ensure strict adherence to the 10-day filing deadline.

On December 12, 2024, the GAO sustained a post-award bid protest in B-422938; B-422938.2, finding that the government’s answer to a contractor question during the Q&A period amounted to a mandatory solicitation requirement that had to be met at the time of proposal submission, and which the awardee’s proposal had failed to satisfy. This protest was the subject of the year’s first TILLIT LAW Featured Insight article published on January 2, 2025. In that post-award protest decision, the GAO concluded that the Air Force had erred in awarding an approximately $180 M task order for portable satellite terminals to a small business holder of the National Aeronautics and Space Administration (NASA) Solution for Enterprise-Wide Procurement (SEWP) indefinite delivery, indefinite quantity (IDIQ) contract. The protestor’s solution, which was technically acceptable and met solicitation requirements at the time of proposal submission, had a total evaluated price of approximately $300 M. The GAO recommended that the Air Force either reevaluate the proposals and issue the award to an offeror that proposed a terminal assembly that met the solicitation requirements or amend the solicitation to reflect the government’s actual needs.

When submitting proposals for federal contracts, offerors must ensure the complete proposal is delivered to the government on time, following the delivery instructions in the solicitation. In electronic submissions, the “late is late” rule places the responsibility on the offeror to ensure that its proposal is submitted ahead of the closing deadline. Notably, a limited exception to the “late is late” rule at Federal Acquisition Regulation (FAR) 15.208(b)(1)(i) permits procuring agencies to consider an electronically submitted proposal if it is received at the initial point of entry to the government servers no later than 5:00 PM one working day before the date specified for receipt of proposals. However, contractors should be mindful that the government control exception at FAR 15.208(b)(1)(ii), applicable to physical deliveries, does not apply to electronic submissions. Thus, when solicitations require proposals to be submitted electronically via email, a web-based portal, or other electronic methods, offerors must ensure that their proposals are delivered to the procuring agency via the solicitation’s designated electronic method before the time for submissions specified in the solicitation, or are received at the initial point of entry to the government servers no later than 5:00 PM, one working day before the date specified for the submission of proposals. The government may also consider a late electronically submitted proposal under FAR 15.208(b)(1)(iii) if it is the only proposal received in response to the solicitation.

The Contract Disputes Act (CDA) provides contractors with alternate forums to resolve claims relating to their federal contracts. After submitting their claim to the contracting officer (CO) and either receiving a denial or a deemed denial on their claim, contractors may appeal the CO’s final decision to either an appropriate Board of Contract Appeals (BCA) or the Court of Federal Claims (COFC). However, once the contractor elects one of the two dispute adjudicative forums and appeals the CO’s adverse decision after receiving notice of the available options, it may not then change forums. Also known as the election doctrine, this rule ensures that once the contractor chooses the forum in which to lodge its appeal under the CDA, it is bound by the election decision and may no longer pursue its appeal in the alternate forum. For the doctrine to apply, the contractor must make an informed, knowing, and voluntary decision to pursue the appeal in one of the two forums with jurisdiction. Once the action is filed in one forum, the other forum must dismiss any subsequently filed appeals concerning the same claim for lack of jurisdiction.

Government agencies utilize the simplified procedures in Federal Acquisition Regulation (FAR) 8.4 to acquire commercial products and services at negotiated discounted rates from pre-qualified vendors. Despite the simplified procedures, procuring agencies must be fair and equal when conducting exchanges with offerors under the FAR 8.4 Federal Supply Schedule (FSS) program. Notably, while the provisions of FAR part 15 governing contracting by negotiation include provisions relevant to post-proposal discussions with offerors, they do not apply to competitive FSS procurements. Under FAR part 15, when an agency conducts discussions with an offeror to obtain essential information relevant to the determination of acceptability of the offeror’s proposal or provides that offeror an opportunity to revise or modify its proposal, it must afford the same opportunity to all other offerors in the competitive range. In other words, the procuring agency may not conduct unequal discussions with offerors in the competitive range. Similarly, although specific procedures of FAR part 15 are inapplicable, solicitations for FAR 8.4 procurements must still contemplate procedures governing exchanges that are fair and equal, failing which the terms of the solicitation may be challenged during pre-award protests.