Protest challenging the terms of a solicitation is denied. The protester alleged the key personnel requirements were unduly restrictive. But before filing a protest with GAO, the protester had sent a letter to the agency expressing concerns about the key personnel requirement. GAO found that this letter amounted to an agency protest. As a result, the protester had to file a GAO protest within 10 days of the agency’s response. But the protester here did not file until more than two weeks after the agency’s response. Thus, the GAO protest was untimely.
Background
The National Oceanic and Atmospheric Administration (NOAA) issued a solicitation seeking scientific support services. The solicitation required offerors to propose five scientists as key personnel.
A prospective offeror, Science and Technology Corporation (STC), sent a “letter of concern” to NOAA about the key personnel requirement. STC stated that the required scientists were not easily available and requiring that many scientists was competition-inhibiting. NOAA responded saying that it had a legitimate need for the scientists and that it would not change the proposal.
A little over two weeks after receiving NOAA’s response, STC filed a GAO protest, alleging that the requirements for five scientists were unduly restrictive.
Legal Analysis
- Standard for Existence of Protest – To be regarded as a protest, a written statement need not explicitly state that it is a protest, but it must convey intent to protest by specific expressions of satisfaction with the agency’s procurement actions.
- STC Filed an Agency Protest – STC’s letter to the NOAA clearly expresses dissatisfaction with the agency by disagreeing with NOAA’s decision to require five scientists.
- NOAA’s Response Resolved Protest – STC didn’t dispute that it had expressed dissatisfaction with the solicitation. Nevertheless, it argued that a protest had never been consummated because the agency’s response was not an adverse agency action that entirely shut the door on STC’s concerns. GAO was not persuaded. The agency’s response clearly articulated its disagreement with STC and refused to amend the solicitation, which amounted to adverse agency action.
- Subsequent GAO Protest Was Untimely – A GAO protest must be filed within 10 days of notice of adverse decision on an agency protest. STC filed its GAO more than two weeks after receiving NOAA’s response.
STC is represented by Robert J. Symon, Nathaniel J. Greeson, and Patrick R. Quigley of Bradley Arant Boult Cummings LP. The agency is represented by Florence N. Bridges and John L. Guinan of the Department of Commerce. GAO attorneys Louis A. Chiarella and Peter H. Tran participated in the preparation of the decision.
