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The protester filed an untimely challenge to the terms of a solicitation. Although the protest was late, the protester argued GAO should still consider the merits under the “significant issue” exception to GAO’s timeliness rules. GAO will consider the merits of a late protest that raises an issue of widespread interest to the procurement community. Alas, GAO concluded, the issue in this protest, which involved a statute governing dry dock repairs for Navy vessels, was too limited to qualify as a significant issue.

Vigor Marine LLC, GAO B-420955.2

Background

The Navy awarded several IDIQ contracts for the support of littoral combat ships docked in San Diego. The Navy issued a solicitation to holders of the IDIQ contracts seeking to award a delivery order for repair of the USS Kansas City. Before proposals were due, General Dynamics-National Steel and Shipbuilding filed a protest challenging the terms of the solicitation. General Dynamics argued that under a federal statute, 10 U.S.C. § 8669a(c), if there is adequate competition among firms based at the homeport of a vessel, the Navy must issue a solicitation only to those firms. General Dynamics and another offeror operated shipyards in San Diego. Thus, General Dynamics contended, the Navy should have only issued the solicitation to those firms.

In response to the protest, the Navy took corrective action, limiting the solicitation to IDIQ holders in the San Diego area. The Navy then issued an amendment restricting performance to the San Diego area. Revised proposals were due August 29, 2022. On September 9, Vigor Marine, LLC filed a protest.

Analysis

Vigor acknowledged that 10 U.S.C. § 8669a, required the Navy to determine whether there was adequate competition among firms that had dry docks in San Diego, but Vigor argued the Navy shouldn’t have made this determination after issuing the solicitation. Vigor recognized that its protest was untimely—i.e., it was a challenge to the terms of the solicitation filed after the deadline for revised proposals. Nevertheless, Vigor argued GAO should consider the protest under the “significant issue” exception to GAO’s timeliness rules.

GAO will consider the merits of an untimely protest, where the protest raises an issue significant to the procurement system. A significant issue is one of widespread interest to the procurement community that has not been considered in a prior decision.

Here, however, GAO didn’t think Vigor’s protest raised a significant issues. The issue—the timing of a determination under 10 U.S.C. § 8669a—was not of widespread concern to the procurement community. The statute only governed Navy procurements for dry dock repairs of ships. The issue would only have limited application to future procurements. GAO dismissed the protest as untimely.

Vigor is represented by Stowell B. Holcomb of Jackson Holcomb, LLP. The intervenor, General Dynamics-National Steel and Shipbuilding, is represented by Noah B. Bleicher, Nathaniel E. Castellano, and Aime JH Joo of Jenner & Block, LLP. The agency is represented by Timothy S. Taylor, Martha E. Hulley, and Lisa Cho of the Navy. GAO attorneys Louis A. Chiarella and Peter H. Tran participated in the preparation of the decision.

–Case summary by Craig LaChance, Senior Editor