On April 14, 2022, the Government Accountability Office (GAO) dismissed a protest in the Matter of U.S. Marine Management, Inc. B-420468, finding the protest untimely because the protester filed it more than 10 days after it knew the basis for its grounds of protest and because the protester failed to demonstrate that was is an interested party to raise such grounds of protest. This decision serves as yet another reminder that when it comes to bid protest litigation before the GAO specifically, timeliness matters.
On March 23, 2021, the Navy issued a request for proposal (RFP) pursuant to Federal Acquisition Regulation (FAR) Part 12, using the negotiated procurement policies and procedures established under FAR Part 15. The RFP was for a time charter of an ice-class tanker vessel for the transportation of petroleum and other cargo and contemplated the award of a contract for a 12‑month base period, three one‑year option periods, and one 11‑month option period. The RFP informed offerors that the Navy’s award would be based on a lowest-price, technically acceptable basis and that the following evaluation factors would be considered: critical submission data, technical, past performance, and price.
The significant dates and events leading up to the filing of the protest are as follows:
- On May 1, 2021, Marine Management submitted three proposals in response to the RFP: one proposing the vessel Maersk Peary for a term of 36 months; one proposing the vessel Maersk Peary and an unnamed replacement vessel for a term of 59 months; and one proposing the vessel CB Adriatic for a term of 59 months. Following these submissions, the Navy conducted initial discussions with Marine Management regarding its three proposals.
- On September 7, 2021, Marine Management submitted a revised proposal for its 59‑month Maersk Peary and replacement vessel offer, reaffirmed its 36‑month Maersk Peary proposal without revisions, and withdrew its CB Adriatic proposal via email to the agency.
- On November 3, 2021, the Navy informed Marine Management that the initial CB Adriatic proposal had been included in the final competitive range even though Marine Management had withdrawn this proposal. The next day, the Navy informed Marine Management that its other two proposals had been excluded from the competitive range. Marine Management timely requested a pre-award debriefing for the 59‑month Maersk Peary and replacement vessel proposal, but not for the 36‑month Maersk Peary
- On November 12, 2021, the Navy provided Marine Management with a pre‑award debriefing for its 59-month Maersk Peary and replacement vessel proposal.
- The Navy set a deadline of November 29, 2021 for the submission of final proposal revisions. Marine Management did not submit any final revised proposals.
- On December 23, 2021, the Navy notified Marine Management that it had awarded the tanker charter contract to another offeror.
- On January 3, 2022, the Navy provided Marine Management with a debriefing for its CB Adriatic proposal, and Marine Management timely submitted questions to the Navy regarding its debriefing, to which the Navy responded on January 11, 2022.
On January 18, 2022, Marine Management filed a protest in which it alleged that the Navy unreasonably relaxed solicitation requirements for the awardee and that its technical evaluation and price evaluation of the awardee were unreasonable. The Navy filed a motion to dismiss the protest, alleging that the protest grounds were not appropriate for consideration on the merits.
The GAO’s findings
The GAO first concluded that Marine Management was not an interested party with standing to protest the reasonableness of the Navy’s technical and price evaluation of the awardee’s proposal because two of its proposals were found to be technically unacceptable and excluded from the competitive range, and the third proposal had been withdrawn. The GAO concluded that if it were to sustain the protest, Marine Management would neither be in line for award (because two of its proposal had been excluded) nor capable of submitting a revised proposal (because it had withdrawn its third proposal from consideration). By law, a GAO protest must be filed by an interested party. An interested party is an actual or prospective bidder or offeror whose direct economic interest would be impacted by the award of a contract or by the failure to award a contract.
Notably, the GAO did conclude that Marine Management was an interested party and had standing to protest the Navy’s relaxing of several solicitation requirements. This was because, according to the GAO, a sustainment based on these grounds would most likely result in the GAO making a recommendation that the Navy revise the RFP, accept revised proposals, and make a new award decision. Because Marine Management would potentially have been able to revise the two proposals that it had not withdrawn, it would have been an interested party to challenge the contract award on these bases.
However, even despite this conclusion, the GAO ultimately went on to find that Marine Management’s protest was untimely. The GAO pointed out that by regulation, a protest that is based on other than alleged improprieties in a solicitation must be filed no later than 10 days after the protester knew or should have known of the basis for its protest, whichever is earlier. 4 C.F.R. section 21.2(a)(2). The GAO also pointed out that while an exception to this general rule is a protest that challenges a procurement conducted on the basis of competitive proposals under which a debriefing is requested and, when requested, is required, this exception will not apply in a situation such as the one in this case, where an agency provides a debriefing that is not required. Here, Marine Management had withdrawn its CB Adriatic proposal on September 7, 2021, and therefore it was not an unsuccessful offeror entitled to a post-award debriefing related to its CB Adriatic proposal, even though the Navy provided a post-award debriefing.
As part of its CB Adriatic proposal debriefing, Marine Management asked follow-up questions that related to the Navy’s treatment of certain RFP requirements and received information that led it to ultimately raise a specific protest ground. But because Marine Management had received the information from the Navy concerning this protest ground, which was related to the relaxation of the RFP requirement associated with vessel reflagging requirements, no later than January 5, 2022, according to the record, Marine Management was untimely in filing its protest on January 18, 2022, which was more than 10 days after it had received the information that gave rise to the protest allegation.
- A protestor must be able to establish that it is an interested party to avoid having its protest dismissed by the GAO. A protestor that cannot receive an award if it prevails on the merits of its protest is not an interested party.
- In a “best value” negotiated procurement, the GAO will determine whether a protestor is an interested party by examining the probable result if the protest is successful. This means that an actual offeror will be determined to be an interested party if it would regain the opportunity to compete if the protest is sustained.
- An unsuccessful offeror must pay close attention to the GAO timelines for filing a protest to avoid missing the protest window.