Protest is dismissed as untimely. The agency solicited offerors under FAR subpart 36.6, which governs procurements for architect/engineer services. After evaluating proposals, the agency notified offerors it had identified the most highly qualified offeror. Several months later, after negotiating with the highly qualified offeror, the agency formalized award to that offeror. The protester filed a protest after the award. GAO found the protest was untimely. The protester’s argument was that the highly qualified decision was flawed. Thus, the protester should have filed its protest within 10 days of the highly qualified decision, not months later after the actual award.
Background
The Navy issued a synopsis under FAR subpart 36.6, which sets forth procedures for architect and engineer procurements. Under subpart 36.6, the agency issues a synopsis that is similar to a solicitation. Interested firms submit a statement of qualifications using Standard Form 330. The agency evaluates the statement of qualifications and then makes a final selection of the most highly qualified firms. The final decision lists the highly qualified firms in order of preference. The agency begins negotiations with the single most highly qualified firm. If those negotiations fail, the agency then goes down the list negotiating with firms until an agreement is reached.
The Navy’s synopsis sought support for environmental cleanup efforts. Five firms submitted statements of qualifications. The Navy ranked the firms and concluded that Geosyntec Jacobs was the highest rated firm.
The Navy notified Battelle Memorial Institute that Geosyntec was the highest rated firm on April 23, 2021. The notice stated that Battelle could request a pre-award or post-award debriefing. Batelle ultimately asked for a post-award debriefing.
Over the next several months, the Navy negotiated with Geosyntec. The Navy formally awarded the contract to Geosyntec on November 30. The Navy provided Battelle with a post-award debriefing on December 1. Batelle filed a protest on December 10, challenging the evaluation of its statement of qualifications.
Legal Analysis
GAO found that Battelle’s protest was untimely. A protest must be filed within 10 days of when the protester learns the basis of the protest. Battelle argued that it learned the basis of its protest on December 1, when the Navy awarded the contract to Geosyntec, and that it had filed within 10 days of December 1.
GAO did not believe that Battelle learned the basis of its protest on December 1. Battelle’s protest was not a challenge to the award, but rather a challenge to the decision to select Geosyntec as the most highly qualified firm. Indeed, the essence of Battelle’s protest was the Navy erred in evaluating the statement of qualifications in making the most highly qualified firm decision. Thus, Battle learning of it protest grounds in April not December.
Upon learning that Geosyntec was selected as the most highly qualified firm, Battelle had an affirmative obligation to diligently pursue information that could provide a basis to protest. To fulfill this obligation, Battelle should have opted for the pre-award debriefing offered by the Navy. While Battelle received a post-award debriefing, that debriefing did not change the basis of Battelle’s protest.
Battelle argued that its protest was timely because FAR 36.607(b) states that debriefing will be held after final selection. But GAO reasoned that Battelle misread this provision. The final selection did not mean the final award; instead it referred to this most highly qualified determination. This further indicated that Battelle should have filed its protest 10 days after the most highly qualified determination, not the final award.
Battelle is represented by Marques O. Peterson, Meghan D. Doherty, Kevin Massoudi, and Dinesh Dharmadasa of Pillsbury Winthrop Shaw PIttman, LLP. The intervenor, Geosyntec, is represented by Robert J. Symon, Patrick R. Quigley, Nathaniel J. Greeson, and Sabah K. Petrov of Bradley Arant Boult Cummings LLP. The agency is represented by Michael J. Garcia and Jacquelyn K. Wright of the Navy. GAO attorneys Raymond Richards, Jonathan L. Kang, and John Sorrenti participated in the preparation of the decision.
