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Published on March 15, 2023 • Law

When Does GAO Have Good Cause to Consider a Late Protest?

The protester objected to the conduct of discussions. GAO found the protest was untimely. GAO may consider a late protest under a “good cause” exception. The protester argued the good cause exception applied because the agency had so brazenly violated the rules governing discussions. But “good cause” does not simply mean the protester has a compelling legal argument. Rather, a protester only has good cause when some unexpected event prevents the protester from filing a timely protest.

ThunderCat Technology, LLC, GAO B-421299

Background

The Department of Veterans Affairs issued an RFQ seeking project management and operations services. After receiving quotations, the VA held discussions, but it limited proposal revisions. The VA explicitly advised vendors they could not make changes to the products they initially proposed.

The VA held discussions with ThunderCat Technology. Despite the limits on revisions, ThunderCat revised its quotation to include a new product it hadn’t initially proposed. The VA rejected ThunderCat’s quotation. ThunderCat protested.

Analysis

Untimely Protest

ThunderCat objected to the limitation or proposal revisions, but the protest was too late. The VA announced the limitation on revisions on September 20. If ThunderCat objected to the limitation, it should have filed a protest by the deadline for proposal revisions, which was September 21. ThunderCat did not file its protest until November 28.

Good Cause

ThunderCat argued GAO should invoke the good cause exception to the timeliness rule. ThunderCat contended the VA had so brazenly violated the rules for the conduct of discussions GAO had good cause to hear the protest.

GAO found ThunderCat misunderstood the good cause exception. GAO does not invoke the exception simply because the protest has a compelling legal basis. Rather, the exception is limited to circumstances where some good cause—like an unexpected event—prevents the protester from filing a timely protest.

ThunderCat is represented by Paul F. Khoury and J. Ryan Frazee of Wiley Rein LLP. The agency is represented by Mary G. Courtney and Annemarie Drazenovich of the Department of Veterans Affairs. GAO attorneys Scott H. Riback and Tania Calhoun participated in the decision.

--Case summary by Craig LaChance, Senior Editor

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