GAO Finds that Protester Waited Too Long to File Protest; Peraton, Inc., GAO B-416916.11


Protest alleging that solicitation no longer met the agency’s needs is dismissed as untimely. A protest alleging changed requirements is akin to a challenge to the terms of a solicitation. A challenge to the terms of a solicitation must be filed before the proposal, or if there is no proposal deadline, within 10 days of when the protester learned of its protest grounds. Here, the agency had not set a deadline for proposal revisions. But the protester learned of its protest grounds more than a month before filing its protest. The protest was therefore untimely.

The Department of State (DOS) awarded a task order for server and software development services to ManTech Advanced Systems International, Inc. An unsuccessful offeror, Peraton, Inc., protested, challenging the sufficiency of the letters of commitment from ManTech’s key personnel. In response, DOS took corrective action to confirm the availability of key personnel and allow offerors to update letters of commitment.

Peraton filed a second protest, alleging that the corrective action was unreasonably narrow. GAO denied that protest. DOS then held discussions with the offerors as part of the corrective action. DOS asked offerors to confirm that the key personnel were available. Peraton asked if offerors could substitute key personnel and submit new commitment letters. DOS allowed offerors to substitute personnel, but it refused to allow revisions to other aspects of the technical and price proposals.

Peraton filed a third protest challenging the limited scope of proposal revisions. GAO sustained that protest, finding that if DOS was allowing substitute personnel, it needed to allow offerors to revise other aspects of their proposals.

Following the protest, DOS informed offerors that it was no longer allowing substitutions of key personnel. Peraton then filed a fourth protest. This time, Peraton alleged that DOS had to amend the solicitation because it no longer met the agency’s needs. Peraton argued that due to the COVID-19 pandemic, the agency needs had changed since it originally issued the solicitation.

GAO noted that when a protester challenges an agency’s failure to amend based on changed requirements, the protest is analogous to a challenge to the terms of the solicitation. Under GAO’s regulations, a challenge to the terms of the solicitation must be filed before the proposal deadline. If a deadline has not been set, then any solicitation improprieties must be protested within 10 days of when the alleged impropriety was known or should have been known.

Here, no closing had been set for the receipt of revised proposal. That meant that if Peraton believed the solicitation no longer met the agency’s needs, it needed to file a protest within 10 days of when it learned the ground of its protest. Peraton, however, conceded that it first learned of its protest grounds more than a month before the agency informed the company that it was no longer allowing the substitution of key personnel.

Indeed, GAO noted that Peraton, which was the incumbent, had been performing the contract during the last two years and was in a position to know the agency’s requirements. But it only brought a protest once DOS had issued a discussion letter that made it clear that Peraton’s proposal would likely be un-awardable. GAO opined that a protester should not hold solicitation challenges in reserve until it becomes clear that they are unlikely to prevail in a competition.

Peraton is represented by J. Scott Hommer, III, Rebecca E. Pearson, Emily A. Unnasch, Christopher Griesedieck, and Taylor Hillman of Venable, LLP. The intervenor, ManTech, is represented by Paul F. Khoury, Brian G. Walsh, Cara L. Lasley, Lindy C. Bathurst, and Nicholas L. Perry of Wiley Rein, LLP. The agency is represented by Tudo N. Pham of the Department of State. GAO attorneys Michael Willems and Edward Goldstein participated in the preparation of the decision.

GAO - Peraton Inc.