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Timeliness Issues for GAO Protests Filed After Agency-Level Protests

The bid protest regulations of the Government Accountability Office (GAO) contain timeliness requirements that demand strict adherence by protesters. In cases where a protester first files an agency-level protest, any subsequent protest at the GAO must be filed within 10 calendar days of actual or constructive knowledge of the initial adverse agency action. In this regard, an adverse agency action refers to any action or inaction by the procuring agency that is prejudicial to the position taken by the protester in its agency-level protest. Notably, such an adverse action includes the opening of bids or the receipt of proposals. Therefore, when protesters file agency-level protests challenging the terms of a solicitation, and the agency does not take any corrective action or extend the date of proposal receipt, the passing of the date of proposal receipt is considered adverse to the protester and starts the 10-day clock for filing a GAO protest. In such cases, if the protester waits for the agency’s decision on the agency-level protest to file its GAO protest and more than 10 calendar days pass after the date of receipt of proposals, the protest is considered untimely under GAO rules.

In B-423802, a bid protest decision issued on September 22, 2025, the GAO determined that a protest filed after 10 days of the date of receipt of proposals was untimely when the protester waited for the agency’s decision on its agency-level protest before filing its GAO protest. The Department of Veterans Affairs (VA) issued the pertinent solicitation to procure medical gas cylinders for the Phoenix VA Healthcare System. The protester filed an agency-level protest on May 27, 2025, challenging the terms of the request for quotation (RFQ) as defective for failing to impose an affirmative responsibility criterion requiring offerors to submit proof of WD licenses with their respective quotations. In response, the contracting officer (CO) issued solicitation amendment 0002, adding FAR clause 52.212-4(q) to the RFQ and extending the proposal due date to July 8, 2025. However, the solicitation amendment did not include an express requirement concerning the proof of WD licenses. On July 8, 2025, before the proposal submission deadline, the protester filed a second agency-level protest, re-raising its argument regarding the WD licenses.

On July 28, 2025, the agency dismissed the protester’s second agency-level protest after determining that the inclusion of FAR 52.212-4(q), which generally requires the contractor’s compliance with all laws, rules, and regulations applicable to the performance, would resolve the WD licenses concern raised by the protester. On August 7, 2025, the protester filed a protest with the GAO, again raising the WD licenses issue it had raised in the agency-level protests. The VA requested a dismissal of the protest before the agency report was due, taking the position that the protest was untimely because the agency’s decision not to extend or otherwise modify the due date for the submission of the revised quotations upon receiving the protester’s second agency-level protest amounted to an initial adverse agency action on that protest. As a result, the protester was required to submit its GAO protest within 10 calendar days of July 8, 2025, the agency’s revised deadline for the receipt of quotations established under solicitation amendment 0002. Since the protester failed to do so, the agency argued that the GAO protest was untimely.

Meanwhile, the protester argued that the agency’s dismissal of its second agency-level protest was the agency’s initial adverse action on that protest. The protester contended that its protest was timely because it was filed within 10 calendar days of July 28, 2025, the date on which the agency dismissed the protester’s second agency-level protest. In further support of its argument, the protester pointed to its first agency-level protest in the same procurement where the agency had taken corrective action and extended the date of the receipt of proposals after the initial due date for receipt of proposals had passed. The protester argued that, based on this prior conduct of the procuring agency, it was reasonable to presume that the agency had not taken an adverse action on its second agency-level protest even when the date of receipt of proposals had passed. However, the GAO was unpersuaded by the protester’s arguments. It reminded the protester that once the agency proceeds with opening bids or accepting proposals after an agency-level protest is filed, the protester is on notice that the agency will not take the requested corrective action on the agency-level protest. Consequently, the timeliness for GAO protests in such scenarios is measured from the date of receipt of proposals rather than from a subsequent formal denial of the agency-level protest. Since the protester’s GAO protest was filed more than 10 calendar days after the July 8, 2025, the revised due date for receipt of proposals under amendment 0002, it was untimely and was dismissed as such by the GAO.

Protests challenging the terms of a solicitation must be filed before the due date for proposals. When an agency-level protest challenging the terms of the solicitation is filed before a GAO protest and the agency takes no corrective action and does not extend the deadline for the receipt of proposals, it is the passing of the due date of the receipt of proposals that starts the 10-day clock for filing a subsequent protest at the GAO. Protesters in such situations should be mindful of this rule and not wait for the agency’s decision on the agency-level protest to file their GAO protest. This is because the passing of the due date for proposals without corrective action by the agency is considered an adverse action. In this connection, once the due date for proposals passes, the agency effectively puts the protester on notice that it will not take the requested corrective action. Therefore, protesters who wish to file a subsequent GAO protest must do so within 10 calendar days of the date of receipt of proposals because waiting on a decision on the agency-level protest may well cost them the opportunity to file a GAO protest, as was the case in the protest described above.

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.

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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.

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Timeliness Issues for GAO Protests Filed After Agency-Level Protests

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