One of the positive aspects of filing a protest at the agency-level (as opposed to filing at GAO or the U.S. Court of Federal Claims), is that there is always the option to “appeal” a denial of the protest by the agency. While not a true appeal of the protest decision, unsuccessful protesters at the agency-level generally have the ability to file the same protest at GAO for another bite at the apple. However, the protester must still meet GAO’s protest deadlines.
In order for the protest at GAO to be timely, GAO regulations require that the protest be filed within 10 days of when the protester knew or should have known of initial adverse agency action. The vast majority of the time, this would mean filing the protest at GAO within 10 days of the agency’s denial of the agency-level protest. However, as illustrated by a recent GAO decision, waiting for the agency to issue its decision could result in the protester’s GAO protest being dismissed as untimely.
In MLS-Multinational Logistic Services, the protester filed two protests at the agency level separately challenging the terms of two solicitations issued by the Department of the Navy, Naval Supply Systems Command. The protester requested that the Navy amend the solicitations and extend the deadline for receipt of proposals. The deadline for receipt of proposals established in the solicitations came and went without an extension, and the Navy accepted proposals from offerors (including from the protester). Later, the Navy issued a decision denying both agency-level protests. Ten days after the Navy denied each of the agency-level protests, the protester filed separate protests at GAO again challenging the terms of the two solicitations.
Ordinarily, this would be a timely protest. An agency’s denial of an agency-level protest is typically the “initial adverse agency action” which triggers the 10-day deadline to file a protest at GAO. However, in this case the initial adverse agency action actually occurred prior to the Navy’s denial of the agency-level protest. In its protest, the protester requested that the Navy extend the deadline for receipt of proposals. Once the deadline for receipt of proposals passed without the Navy extending the deadline as requested in the agency-level protest, the protester should have known it was not going to receive the relief requested in its proposal. Thus, the deadline to file a timely GAO protest would be measured from this point, i.e., when the Navy moved forward with receipt of proposals without extending the deadline. Because the protest was not filed at GAO until more than 10 days after the protester knew of the initial adverse agency action, GAO dismissed the protests as untimely.
Again, the majority of the time a protest filed at GAO will be timely if it is filed within 10 days of an agency issuing a denial of an agency-level protest. However, this case is an important reminder that the deadline to file at GAO is not actually triggered by the agency’s decision, but rather the deadline is triggered by the very first action or inaction by the agency that is detrimental to the protester’s protest.
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