The protester alleged that a solicitation amendment conflicted with the evaluation criteria. The agency argued this was an untimely challenge to the amendment’s terms. The protester claimed it had preserved this challenge by filing an agency protest. GAO found the protester had filed an agency protest, but the GAO protest was still untimely. The protester had not filed with GAO within 10 days of adverse agency action on the agency protest. The agency never addressed the agency protest and instead simply asked offerors for revised proposals. By not considering the agency protest and asking for revisions, the agency had taken adverse action. The protester should have filed its GAO protest within 10 days of that adverse action.
Briar Meads Capital-BMC15-Westwood of Lisle, LLC, GAO B-420800, B-420800.2
Background
GSA issued a request for lease proposals for office space. Award would be made to the lowest-priced, technically-acceptable proposal. GSA received proposals form several offerors, including the incumbent lessor, Briar Meads Capital.
While conducting discussions with the offerors, GSA amended the solicitation, deleting certain costs from the price evaluation criteria. Briar sent a letter to the contracting officer complaining about the amendment.
GSA didn’t address the letter. Instead, the agency asked for final proposal revisions. Briar submitted the revisions, but GSA awarded the lease to another offeror. Briar protested.
Analysis
Briar argued that by deleting costs from price evaluation, GSA had failed to follow the award methodology set forth in the solicitation. GSA argued that this was really a challenge to the terms of a solicitation amendment and thus should have been raised before the deadline for proposal revisions. Briar argued that its letter to GSA complaining about the amendment had been an agency protest, which had preserved its GAO protest.
A letter that indicates dissatisfaction with an agency decision and requests corrective action will be considered an agency protest. If an agency protest is timely filed, a protester has 10 days from adverse agency action to file a GAO protest. An “adverse agency action” means any action or inaction on the part of the agency that is prejudicial to the protesters.
GAO found that the letter Briar sent was an agency protest—it expressed dissatisfaction with the amendment and raised concerns about the evaluation methodology. But GAO reasoned that Briar had not filed a timely protest in response to adverse agency action on the protest. Briar submitted an agency protest, but GSA didn’t address it for two months. Instead, GSA asked offerors to submit revised proposals by February 14, 2022. GSA’s actions in accepting revised proposals without addressing the Briar’s protest was prejudicial to Briar. Briar should have filed a GAO protest within 10 days of February 14. Alas, Briar didn’t file a GAO protest until June. GAO dismissed the protest as untimely.
Briar is represented by Sharon A. Roach of Potter & Murdock, PC. The agency is represented by Robert W. Foltman of the General Services Administration. GAO attorneys Heather Weiner and Jennifer D. Westfall-McGrail participated in the preparation of the decision.
–Case summary by Craig LaChance, Senior Editor
