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.
On January 15, 2025, the Air Force filed a request with the GAO to reconsider and modify its recommendations in B-422938; B-422938.2. The agency cited significant expenses and unacceptable delays in implementing the recommendations as reasons for its reconsideration request. The Air Force argued that implementing one of the two recommendations would necessarily require terminating the task order for the government’s convenience while subjecting the agency to termination costs. Notably, the protestor had filed its protest more than five days following the debriefing, which meant that performance was not automatically stayed during the pendency of the GAO protest. Additionally, the Air Force had not voluntarily stayed performance, which meant that it would owe the previous contractor a portion of the obligated amount for performance until the termination date, along with any termination costs. The agency also provided that if the proposals were reevaluated, as the only technically acceptable proposal received by the Air Force, the protestor would most likely be the awardee, despite having proposed a total evaluated price approximately $120 M higher than the awardee’s solution. Alternatively, resoliciting an amended solicitation would delay the acquisition by more than 18 months, which was unacceptable from a readiness standpoint.
The GAO began its analysis by first acknowledging the cost and readiness concerns raised by the agency as barriers to implementing its recommendations. However, despite recognizing these concerns, the GAO dismissed the Air Force’s request for reconsideration because it was untimely filed. The GAO explained that its regulations required requests for reconsideration to be filed within 10 days after the basis for reconsideration is known or should have been known. In the present case, over a month had passed between the issuance of the GAO’s decision and the Air Force’s request for reconsideration. Furthermore, the Air Force did not argue that there had been any significant changes or developments in that month that would have informed its request. On the contrary, the agency was aware of the cost and readiness concerns raised in its reconsideration request during the pendency of the protest. The GAO also noted the Air Force’s failure to raise its concerns during the protest as objections to the protestor’s ability to demonstrate competitive prejudice or to the impracticability of its requested remedies.
While the GAO acknowledged that the agency provided letters from senior Air Force officials dated early January 2025, which described the potential impacts of implementing its recommendation, it nevertheless dismissed the request, noting that these potential impacts were known or should have been known to the agency at the time the decision was issued on December 12, 2024. The Air Force was also reminded that by allowing performance to continue during the period between the issuance of the decision and the late-filed request for reconsideration, the agency only exacerbated the costs of potential termination or reprocurement delays it had cited as concerns in implementing the GAO’s recommendations. Ultimately, in dismissing the Air Force’s request, the GAO noted the absence of a “significant issue” exception to its timeliness rules governing the filing of requests for reconsideration. Thus, the protest was dismissed because the governing bid protest regulations did not give the GAO discretion to reconsider untimely filed requests for reconsideration.
Parties in a GAO protest may file a request for reconsideration of their protests within 10 days after the issuance of the protest decision. Contractors should strictly adhere to this 10-day deadline to file their reconsideration requests as the GAO does not have the discretion to consider late-filed requests even in the presence of a significant issue or good cause. Contractors should be mindful that requests to change or modify the GAO’s recommended remedy are considered reconsideration requests and subject to the same 10-day deadline. It is also worth noting that the government may not typically raise threshold issues such as lack of prejudice to the protestor for the first time in its request for reconsideration, if such issues can be appropriately raised during the pendency of the protest. To properly raise such issues in a request for reconsideration, the agency must demonstrate that it did not and could not have known of the relevant issues while the protest was pending. In rare cases where the reason for the reconsideration request is known after the protest decision has been issued, the parties must submit their requests within 10 days of discovering the reason. In such cases, a showing of significant changes or developments after the issuance of the protest decision would likely be necessary to support the reconsideration request.
This Bid Protest Insight is provided as a general summary of the applicable law in the practice area and does not constitute legal advice. Contractors wishing to learn more are encouraged to consult the TILLIT LAW PLLC Client Portal or Contact Us to determine how the law would apply in a specific situation.
