The Government Accountability Office (GAO) has strict timeliness rules for submission of bid protests. Under these timeliness rules, post-award protests must typically be filed no later than 10 days after the basis of the protest is known or should have been known, except when the debriefing exception applies. The debriefing exception, which does not apply to federal supply schedule (FSS) procurements, requires unsuccessful offerors to file their protests within 10 days of a required and requested debriefing. In General Services Administration (GSA) FSS procurements conducted under Federal Acquisition Regulation (FAR) subpart 8.4, unsuccessful offerors are only entitled to a “brief explanation.” Due to the terms being somewhat similar, contractors may confuse the “brief explanation” contemplated under FAR subpart 8.4 with the required and requested “debriefing” of competitive proposals. Such confusion may prove problematic as it can cause an unsuccessful offeror to miss the 10-day deadline to file their post-award protest at the GAO.

In B-422881, a decision issued on September 12, 2024, the GAO dismissed such a protest as untimely, reminding the protestor of the distinction between a required and requested “debrief” and a “brief explanation” under FAR subpart 8.4. The Navy’s Military Sealift Command issued the relevant FSS Request for Quotation (RFQ) for lodging negotiation and management services, requiring vendors to provide multiple extended-stay studio rooms in Mobile, Alabama. The RFQ contemplated a lowest-priced technically acceptable (LPTA) award and required offerors to submit their quotations on or before August 8, 2024. The protestor was notified that its quotation was unsuccessful on August 13 via the GSA eBuy system. On August 16, the government provided the protestor with a “brief explanation,” as required under FAR subpart 8.4. In the brief explanation, the Navy advised the protestor that its quotation was evaluated as technically unacceptable and was therefore ineligible for award. The brief explanation also specifically noted that it was not a debrief.

Solicitations for federal contracts and their included Federal Acquisition Regulation (FAR) clauses often direct contractors to complete representations and certifications relevant to the acquisition. Depending on the solicitation, contractors may have to complete and maintain certain representations and certifications in the System of Award Management (SAM) website or attach them to their proposals. Consequently, an offeror’s failure to complete or attach the required representations and certifications may lead to the rejection of its proposal for failing to follow solicitation instructions. When reviewing an agency’s rejection of a proposal as noncompliant for not completing or attaching the required representations and certifications, protest adjudicative forums such as the Government Accountability Office (GAO) will typically examine the record to determine whether the agency’s decision was reasonable and per the solicitation criteria and applicable statutes and regulations. Contractors in such situations should be mindful that if the solicitation does not expressly require the submission of certain representations and certifications with the proposal, the procuring agency may not then use the failure to attach those representations and certifications as a basis for rejecting their proposals.

Under the Small Business Act and the Office of Federal Procurement Policy Act, federal agencies must publish notices of proposed contract actions and modifications exceeding $25,000 on the System of Award Management (SAM) unless an exception listed in Federal Acquisition Regulation (FAR) 5.202 applies. In other words, the government must publish all notices, which the FAR requires to be published via the governmentwide point of entry (GPE), SAM.gov. The SAM.gov GPE is the single point where contractors and the public can electronically access government business opportunities. Importantly, once the government publishes the synopses of a procurement action on SAM.gov, contractors are presumed to have “constructive notice” of the action. Under the doctrine of constructive notice, a party is imputed knowledge of a matter, even if it does not have actual knowledge of the matter at issue. Thus, as long as the government publishes the notice of an action via SAM.gov, contractors or interested offerors may not cite a lack of actual notice as prejudicial because they are presumed to have constructive notice of the published procurement action.

Thus, when an offeror fails to find or view a notice or a solicitation posted by the contracting officer (CO) on SAM.gov, that offeror is precluded by the presumption of constructive notice from subsequently filing a protest alleging it was denied a fair opportunity to compete. In B-416623, a small business contractor alleged that it was denied an opportunity to compete for a Department of Agriculture solicitation for the acquisition of foreclosure legal services and related technical support. In its protest filed at the Government Accountability Office (GAO), the protestor contended that the government never provided it with a copy of the solicitation and it could not locate the solicitation on the FedBizOpps website, which was the GPE before SAM.gov. The protestor took the position that it diligently pursued the subject opportunity through the FedBizOpps website by signing up for automatic updates and performing regular searches for relevant key terms. However, despite its best efforts, the protestor was unable to find or view the solicitation and thus failed to respond in a timely manner. In applying the presumption, the GAO charged the contractor with constructive notice and rejected the protestor's argument that the government had denied it a fair opportunity to compete.

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.