For its bid protest function, the Government Accountability Office (GAO) has strict timeliness rules for protest submissions. These timeliness rules are designed so that protestors may receive an effective and efficient resolution to their bid protests without unduly jeopardizing or delaying the procurement at issue. Protestors must file pre-award protests based on alleged improprieties in a solicitation before the time established for the receipt of proposals. Meanwhile, all other protests must generally be filed within ten calendar days of when the protestor knew or should have known about the basis of the protest. However, there is a debriefing exception to these general timeliness rules, which ensures contractors have an opportunity to understand the basis for their loss before deciding to protest. Under 4 C.F.R. § 21.2, this exception applies to procurements involving competitive proposals under which a debriefing is required and requested. The debriefing exception allows protestors to bring protests within 10 days of the required and requested debrief, therefore potentially extending the timeline under which a protest concerning competitive proposals may be brought at the GAO. The term “competitive proposals” is a term of art in government contracts parlance and is not expressly defined by statute or regulation. Competitive proposals involve negotiated procurement procedures that contemplate the creation of a competitive range of offerors before awarding the contract to the offeror that presents the most advantageous solution. Notably, the debriefing exception only applies to competitive proposals.

The Competition in Contracting Act (CICA) mandates the use of procurement procedures enabling full and open competition in federal acquisition. Agencies may not place task or delivery orders that fall outside the scope of the underlying blanket purchase agreement (BPA) or indefinite delivery indefinite quantity (IDIQ) contract as such requirements are subject to full and open competition under CICA. In such protests, the protestors generally challenge the award against the master contract by alleging that the task or delivery order improperly exceeded the scope of the underlying master contract. The adjudicative forum must then decide whether material differences in scope exist between the order at issue and the relevant underlying master contract.

In B-412821, the Government Accountability Office (GAO) sustained such a bid protest challenging the issuance of an out-of-scope sole-source delivery order under a Government Services Administration (GSA) Federal Supply Schedule (FSS) Blanket Purchase Agreement (BPA). The protest involved the acquisition of Microsoft e-mail products for the Internal Revenue Service (IRS). The BPA was issued in 2013 for maintenance and software assurance services for the IRS’s existing inventory of Microsoft products and services for a period of three years. The BPA included a complete schedule of the Microsoft product licenses owned by the IRS and their quantities. Under the BPA, the IRS was expressly permitted to upgrade and use the latest version of each Microsoft product during the term of the BPA if it so chose. Additionally, if Microsoft products owned by the IRS became unsupported by the manufacturer, the IRS retained the right to convert its licenses to comparable, supported products at no cost. In other words, by utilizing this BPA, the IRS intended to keep its portfolio of Microsoft licenses up to date with the latest versions.

In negotiated procurements, contractors must meet strict timeliness requirements when responding to the government’s requests for proposals (RFPs) or risk being excluded from consideration for an award. The Federal Acquisition Regulation (FAR) § 15.208 outlines the general rules for the timeliness of proposals in negotiated procurements, along with their relevant exceptions. Prospective contractors are responsible for submitting proposals in accordance with RFP instructions and ensuring that their proposals reach the designated agency office by the time specified in the solicitation. If the solicitation does not specify a time for receipt of proposals, FAR § 15.208(a) instructs offerors to submit their proposals by 4:30 PM local time for the designated agency office on the date the proposals are due. Proposals that are received at the designated agency office beyond the exact time specified for receipt of proposals are considered late and generally excluded from consideration of award. Also known in government contracts industry parlance as the “late is late” rule, the timeliness requirements for proposal submissions in negotiated procurements make it the contractor’s burden to ensure strict compliance.

*** REGULATORY UPDATE: On November 12, 2024, the General Services Administration, Department of Defense, and National Aeronautics and Space Administration issued an interim rule, which went into effect the same day. The interim rule amended the Federal Acquisition Regulation to clarify System of Award Management (SAM) pre-award registration requirements. The rule revises the solicitation provision at FAR 52.204-7 to clarify that while an offeror must be registered in SAM at the time of offer submission and at the time of contract award, the offeror need not be registered in SAM at every moment in between those two points. Accordingly, parts of the Government Accountability Office and the Court of Federal Claims decisions, including the decision referenced in this article, that levy a requirement for offerors to maintain a continuous, uninterrupted, SAM registration during the entirety of the pre-award process are no longer applicable.***

To be eligible for federal contract awards, contractors are required to register and maintain their System for Award Management (SAM) registration within the integrated award environment (IAE) managed by the General Services Administration (GSA) Federal Acquisition Service (FAS). The Federal Acquisition Regulation (FAR) requires federal contractors to initially register in SAM before they receive an award and annually renew their registration thereafter. Additionally, FAR § 4.1105 instructs contracting officers (CO) to insert the provision at FAR 52.204-7 in all solicitations except where certain limited exceptions apply. The provision at FAR 52.204-7 provides in pertinent part that “an offeror is required to be registered in SAM when submitting an offer or quotation, and shall continue to be registered until time of award, during performance, and through final payment of any contract, basic agreement, basic ordering agreement, or blanket purchasing agreement resulting from this solicitation.” Occasionally, a situation may arise where a prospective contractor’s SAM registration lapses between the time it submits a proposal and when it receives a contract award in violation of the provision at FAR 52.204-7. In such situations, the resulting award may be protested for violating the terms of the solicitation, provided the solicitation contains the provision at FAR 52.204-7.