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The Government Accountability Office recently rejected a novel argument regarding how timeliness is to be determined for GAO protests filed after an agency either dismisses or denies an agency-level protest.  In finding that the timeliness of such a protest does not depend on the nature of the adverse agency action, GAO has effectively prevented an agency from dismissing an agency-level protest without considering the merits of the protest, and then moving to dismiss on timeliness grounds at GAO so as to preclude any review on the merits.

In Logis-Tech, Inc., B-407687, Jan. 24, 2013, 2013 CPD ¶ –, the United States Marine Corps argued that the protest should be dismissed as untimely because, by first filing an "unauthorized" agency-level protest, the protester missed its chance to file at GAO within 10 days of its debriefing.  The relevant timeline of events is that: on September 26th, the Marine Corps notified vendors of award and sent debriefing letters to each of the offerors; nine days later, on October 5th, Logis-Tech filed an agency-level protest with the contracting officer; seven days after that, on October 12th, the Marine Corps dismissed the agency-level protest on the basis that it lacked jurisdiction; and then, on October 16th, Logis-Tech filed its protest at GAO.

The Marine Corps asserted that because it believed that it lacked jurisdiction over the agency-level protest, the timeliness of Logis-Tech’s GAO protest could not be based on its filing of the agency-level protest.  Under this logic, Logis-Tech’s GAO protest would have had to have been filed on or before October 6th – more than six days before the Marine Corps responded to the agency-level protest – to be timely.

In denying the Marine Corps’s argument, GAO narrowly focused on the relevant parts of its Bid Protest Regulations:

If a timely agency-level protest was previously filed, any subsequent protest to GAO filed within  10 days of actual or constructive knowledge of initial adverse agency action will be considered, provided the agency-level protest was filed in accordance with paragraphs (a)(1) and (a)(2) of this section, unless the agency imposes a more stringent time for filing, in which case the agency’s time for filing will control . . . .

4 C.F.R. § 21.2(a)(3) (2012) (emphasis added).  This rule does not require GAO to consider the form of the "initial adverse agency action" – i.e., whether it was a dismissal for lack of jurisdiction or other reasons, or a denial on the merits of the protest.  Rather, GAO held that the mere fact that Logis-Tech’s protest was filed with the agency in a timely manner, and then filed with GAO within 10 days of when it learned that the agency dismissed the protest, was sufficient to establish timeliness.

The question that remains unanswered by GAO’s decision in Logis-Tech is whether the Marine Corps properly dismissed Logis-Tech’s agency-level protest on the basis that it lacked jurisdiction to consider a protest of a task order award.  The Marine Corps asserted that only GAO has jurisdiction over protests of task orders.  The Marine Corps read the statute authorizing, and establishing a preference for the use of, task orders to limit the rights of protesters, placing reliance on such provisions as the "Comptroller General of the United States shall have exclusive jurisdiction of a protest authorized under paragraph (1)(B)" at 10 U.S.C. § 2304c(e)(2).  It is not clear from the decision how the Marine Corps responded to Logis-Tech’s argument that the agency itself encourages its contractors to resolve disputes directly with the agency when possible.