This week, in UXB-KEMRON Remediation Services, LLC, B-401017 (Oct. 25, 2010), the GAO provided an important reminder about its exacting application of timeliness rules. 

The United States Army Corps of Engineers (“USACE”) published a delivery order proposal request under a multiple award, ID/IQ contract for landmine removal work in Afghanistan. The ID/IQ schedule contract under which the solicitation was issued had a pool of both large and small business entities with expertise in the area of munitions removal and disposal. 

 

The USACE decided to make the delivery order procurement at issue an unrestricted competition open to both small and large businesses alike. One small-business contract holder, UXB-KEMRON Remediation Services LLC, disagreed with this decision and contacted the Contracting Officer to request that the competition be limited to the pool of small business schedule contractors. When the Contracting Officer rejected this request, UXB-KEMRON filed an “appeal” to the USACE’s Task Order Ombudsman seeking reconsideration of the issue. The appeal was filed nine days prior to the due date for quotes. 

 

Eight days later, on the eve of the due date for quotes, the Task Order Ombudsman denied UXB-KEMRON’s appeal. The next week, UXB-KEMRON filed a bid protest with the GAO.  

Shortly thereafter, USACE submitted a motion to dismiss the GAO protest on timeliness grounds because it had been filed after the due date for quotes. In response, UXB-KEMRON argued that its “appeal” to the Task Order Ombudsman was an agency-level protest and, per Federal Acquisition Regulation § 33.103, UXB-KEMRON had ten days from the date of denial of the agency-level protest to file a GAO protest, even if the due date for quotes had lapsed. 

 

GAO agreed with the Government and dismissed the case. The basis for the dismissal was the Comptroller General’s conclusion that an appeal to the Task Order Ombudsman is not an agency-level protest under FAR Part 33 because the Task Order Ombudsman position is a creation of FAR Part 16. In particular, FAR § 16.505(b)(6) states in pertinent part:

 

Task-order and delivery-order ombudsman. The head of the agency shall designate a task-order and delivery-order ombudsman. The ombudsman must review complaints from contractors and ensure they are afforded a fair opportunity to be considered, consistent with the procedures in the contract.

 

Though the “appeal” to the Ombudsman may well have contained all of the information necessary for a valid agency-level protest, FAR § 33.103 does not contain any exceptions to the rules for agency-level protests for Ombudsman appeals. Therefore, because the Ombudsman “appeal” was not styled as a bid protest, and because it was addressed to someone other than the Contracting Officer (or other official designated to receive bid protests), GAO refused to treat it as the equivalent of an agency-level protest. As a result, UXB-KEMRON’s time to file at GAO had expired on the day quotes were due. 

 

This case serves as an important lesson that GAO’s timeliness rules are precisely written and quite unforgiving. Contractors must read these rules carefully and, when unresolved questions remain, contractors should consult with government contracts counsel rather than guess about the appropriate course of action and risk making an error that cannot be undone.