Photo of John E. McCarthy Jr.Photo of Anuj VohraPhoto of Zachary Schroeder

Generally, a GAO protest challenging the terms of a solicitation is timely if filed within 10 days after the denial of an agency-level protest, “even if filed after bid opening or the closing time for receipt of proposals.”  4 C.F.R. § 21.2(a)(3).  Accordingly, the salient consideration for determining when that 10-day clock begins to run is when the agency denies the agency-level protest.  But in Marathon Medical Corp., B-422168.2, February 14, 2024, GAO held that if an agency has not ruled on a pre-award agency-level protest as of the closing date for receipt of proposals, then the protest is deemed denied as of that date—and the protester’s clock for filing a GAO protest begins to run—even if the agency later issues an actual decision denying the protest. 

Marathon considered a protest challenging the terms of a Department of Veterans Affairs (VA) solicitation for commercial medical supplies.  On November 29, Marathon filed an agency-level protest challenging the solicitation’s inclusion of the non-manufacturer rule at FAR 52.219-33, claiming the rule would preclude small-business participation in the procurement.  Marathon’s agency protest was timely, because it was filed three days before the December 1 deadline for proposal submissions.  On January 17, 2024, the VA issued a written decision denying Marathon’s agency-level protest.  Marathon filed a protest at GAO within ten days of that denial. 

GAO held Marathon’s latter protest was untimely.  In so doing, GAO did not dispute that Marathon’s agency-level protest was timely filed.  Instead, GAO explained that once the December 1, 2023 closing date for receipt of proposals passed without any agency action on the agency-level protest, Marathon was on notice that the agency would not undertake the requested corrective action.  Thus, Marathon’s GAO filing clock began to run on December 1, not when the VA later issued a written denial.  In other words, the VA’s January 17 decision was a nullity.

Thus, protesters must beware that, if an agency proceeds with acceptance of proposals or quotes despite the pendency of an agency-level protest, then the agency has functionally denied the protest and the 10-day clock for filing at GAO has begun to run. 

Key Takeaways

  1. Agency-level solicitation challenges should be filed well in advance of proposal submission deadlines and explicitly request that the agency extend, suspend, or cancel the submission deadline. In the absence of sufficient time for an agency to rule, a potential protester should consider the utility, if any, of filing at the agency, as opposed to proceeding directly to GAO.
  2. Protesters must ensure that they are tracking the submission deadline and are prepared to file at GAO if the deadline is not extended, suspended, or cancelled.
Tags: government contracts
Print:
Email this postTweet this postLike this postShare this post on LinkedIn
Photo of John E. McCarthy Jr. John E. McCarthy Jr.

John E. McCarthy, Jr. is a partner in the Washington, D.C. office of Crowell & Moring and member of the firm’s Government Contracts Group. John has spent more than thirty years litigating all forms of government contracts cases for both large and small…

John E. McCarthy, Jr. is a partner in the Washington, D.C. office of Crowell & Moring and member of the firm’s Government Contracts Group. John has spent more than thirty years litigating all forms of government contracts cases for both large and small government contractors, with a particular emphasis on bid protests. Because of John’s strong engineering background, he has particular experience in technology related issues, including litigation regarding complex technology and data rights, patent and other intellectual property issues.

Read more about John E. McCarthy Jr.
Show more Show less
Photo of Anuj Vohra Anuj Vohra

Anuj Vohra litigates high-stakes disputes on behalf of government contractors in federal and state court, and maintains an active bid protest practice before the U.S. Government Accountability Office and the U.S. Court of Federal Claims. He also assists clients with an array of…

Anuj Vohra litigates high-stakes disputes on behalf of government contractors in federal and state court, and maintains an active bid protest practice before the U.S. Government Accountability Office and the U.S. Court of Federal Claims. He also assists clients with an array of issues related to contract formation (including subcontracts and teaming agreements), regulatory compliance, internal and government-facing investigations, suspension and debarment, organizational conflicts of interest (“OCIs”), intellectual property and data rights, and the Freedom of Information Act (“FOIA”).

Prior to entering private practice, Anuj spent six years as a Trial Attorney in the U.S. Department of Justice’s Commercial Litigation Branch. At DOJ, he was a member of the Bid Protest Team—which handles the department’s largest and most complex protests—and served as lead counsel in dozens of matters representing the United States in commercial disputes before the U.S. Court of Appeals for the Federal Circuit, the Court of Federal Claims, and the U.S. Court of International Trade.

Read more about Anuj Vohra
Show more Show less
Photo of Zachary Schroeder Zachary Schroeder

Zachary Schroeder is a counsel in Crowell & Moring’s Washington, D.C. office, where he practices in the Government Contracts Group.

Zach represents contractors in both litigation and counseling matters. His practice focuses on representing contractors in bid protests before the Government Accountability Office…

Zachary Schroeder is a counsel in Crowell & Moring’s Washington, D.C. office, where he practices in the Government Contracts Group.

Zach represents contractors in both litigation and counseling matters. His practice focuses on representing contractors in bid protests before the Government Accountability Office (GAO), the U.S. Court of Federal Claims, and the Federal Aviation Administration’s Office of Dispute Resolution for Acquisition. His practice also includes federal regulatory and ethics compliance, as well as various aspects of state and local procurement law, including representing contractors in size protests and affiliation matters. In the transactional context, Zach has performed government contracts diligence for government contractors in a range of industries.

While in law school, Zach served as a judicial intern for Judge Mary Ellen Coster Williams at the U.S. Court of Federal Claims. He also served as the chair of the 2017 Government Contracts Moot Court Competition and as an editorial staff member of the American Intellectual Property Law Association (AIPLA) Quarterly Journal.

Read more about Zachary Schroeder
Show more Show less
Related Posts
CBCA’s FY 2024 Report – Examining the Numbers
January 8, 2025
Back to the Future: CBCA to Implement New Electronic Docketing System
January 8, 2025
Special Edition of the Fastest 5 Minutes
December 30, 2024