The agency argued that the rules governing late proposals should also apply to agency protests. GAO rejected the argument. Proposals and protests are governed by distinct parts of the FAR. Nevertheless, GAO denied the protest on the merits.
LinQuest Corporation, GAO B-422285, B-422285.2
- Agency Protest – The agency excluded the protester from the competitive range. The protester filed a timely agency protest by email. The email reached a government server, but a firewall blocked and deleted it. The protester resubmitted. But the agency rejected the resubmitted protest as untimely. The protester then filed at GAO.
- Timeliness of GAO Protest – An agency protest will toll the time in which to file a GAO protest. But the agency protest will only toll that time if it’s timely. The agency argued the agency protest was untimely, so the subsequent GAO protest was untimely.
- Late Proposal Rules – The protester argued its agency protest was not late because the agency’s servers had received it before the deadline. The government argued that under the standards used for proposals, the agency protest was untimely. But GAO said the proposal standards do not apply to agency protests. Proposals and protests are governed by two different FAR sections, with different timeliness rules.
- Agency Server – The agency also argued that the agency protest had not reached the agency’s server; it had only reached the firewall boundary of different DoD agency’s server. GAO did not find this argument compelling. The protester did not know the agency’s network topography—it could only send a proposal to the email indicated in the solicitation. Here, the protest was timely submitted to a government server. The protester worked diligently to confirm receipt and to resubmit. GAO refused to find the agency protest was late.
- Misleading Discussions – As to the merits, the protester argued the agency’s evaluation notices were confusing. But GAO noted the agency had also held oral discussions. During those oral discussions, offerors had a chance to ask the agency about the evaluation notices. The protester only asked the agency about 11 our of 59 evaluation notices. To the extent, the protester found the notices misleading, it had a chance to resolve some of the confusion.
- Unstated Criteria – The agency assessed deficiencies to the protester for proposing to cross-utilize individuals to address multiple PWS requirements. The protester argued the solicitation did not prohibit cross-utilization so the agency must have applied unstated criteria. GAO didn’t bite. The agency’s concerns about cross-utilization were related to the express requirement that the agency evaluate whether an offeror proposed enough labor to perform the required tasks.
The protester is represented by Kevin P. Mullen, Lyle Hedgecock, and Rioke Iko of Morrison & Foerster LLP. The agency is represented by Colonel Patricia S. Wiegmen-Lenz, Ledara Y. Clark, and Lawrence M. Anderson of the Air Force as well as B. Eric Beckstrom of the Space Force. GAO attorneys Michael Willems and Evan D. Wesser participated in the decision.
–Case summary by Craig LaChance, Editor in Chief
