Photo of Cherie OwenPhoto of Christian CurranPhoto of Amanda McDowellPhoto of Rina Gashaw

When faced with a dissatisfying debriefing, a contractor may choose to respond to the agency to question or even rebut its evaluation.  However, the recent Government Accountability Office (GAO) decision in NikSoft Systems Corporation (NikSoft) serves as an important reminder that those communications can be interpreted as agency-level protests, with potential to render subsequent GAO protests untimely. 

On August 16, 2023, GAO dismissed a protest filed by NikSoft as untimely—in a decision that hinged upon GAO’s determination that emails sent by NikSoft to the agency constituted a prior, untimely agency-level protest.  NikSoft had submitted a proposal for an indefinite-delivery, indefinite-quantity contract for agile system development and support services for the Library of Congress (LOC).  On June 15, LOC notified NikSoft that its proposal was not among the most highly rated and was excluded from the competitive range.  The notification also provided a summary of the agency’s evaluation.  The next day, NikSoft requested a pre-award debriefing, which the LOC sent on June 30.  The debriefing included the same rationale as the exclusion notice, explaining the basis for the two technical weaknesses in NikSoft’s proposal and stating that NikSoft could submit additional questions to the agency no later than July 5.  NikSoft emailed LOC a response to its debriefing on July 5 at 10:01 p.m., contesting and providing a rebuttal to the two assessed weaknesses.  NikSoft’s email also asked the LOC to reevaluate and reconsider its proposal. 

The LOC deemed NikSoft’s email to have been received on July 6 and treated the email as an agency-level protest, which LOC denied as untimely because it was filed more than 10 days after NikSoft learned of the reasons for its exclusion from the competitive range.  The next day, July 7, NikSoft sent an email to the LOC, which the company labeled as an agency-level protest.  Having already considered NikSoft’s prior email to be an agency-level protest, the LOC treated the new email as an appeal of the contracting officer’s July 6 denial.  The agency’s senior procurement official denied the appeal.

On July 10, NikSoft filed a protest at GAO, arguing that the LOC did not reasonably evaluate its proposal and that its exclusion from the competitive range was improper.  The LOC moved to dismiss NikSoft’s protest as untimely, because it was not filed within 10 days of when NikSoft knew or had reason to know of the basis for its exclusion from the competitive range.  NikSoft countered that its protest was timely because it was filed within 10 days of the conclusion of the agency’s debriefing. 

If NikSoft had not first filed an agency-level protest, then its protest might have been timely under the “debriefing exception” set forth in 4 C.F.R. § 21.2(a)(2), which states that protests filed within 10 days after a required debriefing are timely.  But GAO found that (1) NikSoft knew or should have known of its basis of protest as of the June 15 notice of exclusion; (2) NikSoft’s correspondence with the LOC constituted an agency-level protest; (3) the agency-level protest was untimely, because it was filed more than 10 days after the notice of exclusion and, importantly, the debriefing exception does not extend the time for agency-level protests; and (4) although GAO’s Bid Protest Regulations allow protesters to file a GAO protest within 10 days of adverse agency action in response to an agency-level protest, that exception to the general timeliness rules can only be used if the agency-level protest itself was timely.  Thus, NikSoft’s agency-level protest and its later protest to GAO were each untimely.

This decision is an important reminder that GAO may construe a contractor’s communications with an agency as an agency-level protest and that, because agency-level protests are governed by the timeliness rules set forth in the FAR, a contractor may wind up with less time to protest than anticipated.

Key Takeaways

  1. As we discussed here, contractors must use caution when corresponding with an agency because such correspondence may be deemed an agency-level protest—even if it is not intended as such (and even if the contractor expressly states that it is not an agency-level protest). Such deemed agency-level protests can significantly alter the timeline for filing a GAO protest and could potentially cause an otherwise timely protest to be untimely.
  2. In the event that GAO concludes a protest is untimely based upon an agency-level protest, contractors should discuss with their protest counsel whether a protest to the Court of Federal Claims is feasible and appropriate.
Print:
Email this postTweet this postLike this postShare this post on LinkedIn
Photo of Cherie Owen Cherie Owen

Government contractors of all sizes — from Fortune 10 companies to small businesses — trust Cherie Owen to represent and advise them on a wide range of government contract matters, including bid protests at the Government Accountability Office, the Court of Federal Claims…

Government contractors of all sizes — from Fortune 10 companies to small businesses — trust Cherie Owen to represent and advise them on a wide range of government contract matters, including bid protests at the Government Accountability Office, the Court of Federal Claims, federal procuring agencies, and state courts. Cherie draws on the unique insights she gained as a senior bid protest hearing officer during her 12-year tenure at the GAO to identify the legal arguments and practical strategies most likely to result in strategic wins for her clients.

Clients rely on Cherie to provide counseling regarding contract formation and negotiation with respect to procurement contracts, grants, cooperative agreements, and Other Transaction Agreements. She also advises government contractors on business and compliance matters, including subcontractor agreements, suspension and debarment, and ethics and conflicts rules and mitigation strategies. In doing so, Cherie takes a pragmatic approach to addressing her clients’ legal and business concerns, leveraging her experience as both a GAO bid protest hearing officer and a judge on the GAO Contract Appeals Board. During her time at the GAO, she resolved over 600 protests, issued over 500 bid protest decisions, and conducted approximately 20 bid protest hearings. As one of only a few former GAO bid protest hearing officials in private practice, Cherie’s extensive familiarity with the inner workings of the GAO protest process distinguishes her from most other bid protest practitioners.

Cherie is a thought leader on topics relating to bid protests and agencies’ use of their Other Transaction Authority, holds several leadership roles in the ABA Public Contract Law Section, and maintains an active pro bono practice.

Photo of Christian Curran Christian Curran

Christian N. Curran is a partner in Crowell & Moring’s Washington, D.C. office, where he practices in the Government Contracts Group. His practice focuses on government contracts litigation and counseling, including bid protests, government investigations, and compliance with federal and state procurement laws…

Christian N. Curran is a partner in Crowell & Moring’s Washington, D.C. office, where he practices in the Government Contracts Group. His practice focuses on government contracts litigation and counseling, including bid protests, government investigations, and compliance with federal and state procurement laws and regulations.

Christian has broad experience in the government contracts arena, including bid protest litigation at both the Government Accountability Office and the Court of Federal Claims, contract claims before the Armed Services Board of Contract Appeals, prime-sub disputes, internal investigations, mandatory disclosures, transactional due diligence, Defense Contract Audit Agency audits, and compliance assessments. He also has experience in both traditional litigation and alternative dispute resolution forums, including international arbitration and mediation, and administrative proceedings before various government agencies.

Photo of Amanda McDowell Amanda McDowell

Amanda H. McDowell is an associate in the Government Contracts and Health Care groups in Crowell & Moring’s Washington, D.C. office. Amanda represents contractors in litigation, regulatory, and counseling matters. Her practice focuses on False Claims Act litigation, government investigations, bid protests, and…

Amanda H. McDowell is an associate in the Government Contracts and Health Care groups in Crowell & Moring’s Washington, D.C. office. Amanda represents contractors in litigation, regulatory, and counseling matters. Her practice focuses on False Claims Act litigation, government investigations, bid protests, and state and federal regulatory compliance.

Photo of Rina Gashaw Rina Gashaw

Rina M. Gashaw is an associate in the firm’s Washington, D.C. office, where she is a member of the Government Contracts Group. Rina’s practice focuses on a range of government contracts issues, including government investigations, client counseling, and providing government contracts due diligence…

Rina M. Gashaw is an associate in the firm’s Washington, D.C. office, where she is a member of the Government Contracts Group. Rina’s practice focuses on a range of government contracts issues, including government investigations, client counseling, and providing government contracts due diligence in transactional matters. Her practice also includes bid protests before the Government Accountability Office and the U.S. Court of Federal Claims.