OHA confirms that GAO proceedings may have no impact on size protest deadlines

OHA was recently confronted with a somewhat unique question: does the deadline for filing a size protest reset after an agency takes corrective action in response to a GAO protest? Unfortunately for the size protester, OHA responded “not always.”

Gotta Hit the Deadline!

Bid protests have strict deadlines for filing. For protests after award, the Government Accountability Office (“GAO”) generally requires a protester to file within 10 days of when it knew, or should have known, the basis for its protest. The exception to this rule is when a required debriefing is timely requested, in which case the protest must be filed no later than 10 days after the close of the required debriefing. As for the Small Business Administration (“SBA”), any protest challenging the size of an awardee must be filed within 5 business days of when the awardee was identified. Debriefings—whether required or not—do not alter this deadline.

As we’ve covered extensively here on GovConBrief, failure to meet the specified deadlines is almost always fatal for a protest. Like this GAO protester who opened their unsuccessful offeror notice afterhours altering the due date for the protest. And this GAO protester who waited through too many rounds of discussion questions to file a protest. And this SBA Office of Hearings and Appeals (“OHA”) appellant who filed an appeal in the wrong venue only to realize after the deadline for filing with the SBA. And this protester . . . well . . . you probably get the idea.

GAO and SBA Differ

Despite their similarly stringent filing deadlines, GAO post award protests and SBA size protests do not share much else in common. GAO will hear protests challenging the evaluation procedures used to evaluate proposals, whereas the SBA will hear challenges to an awardee’s size or program eligibility qualifications. There is little, if any, overlap between the two processes.

Nevertheless, a successful size protest may moot a GAO protest by eliminating the awardee and forcing a new source selection decision. Similarly, a successful GAO protest may moot a size protest by recommending an award be cancelled and a reevaluation occur. In each outcome, the identity of the awardee becomes unknown and both SBA and GAO will dismiss the protest because any further decision would be speculating about an evaluation that has yet to happen.

OHA Doesn’t Always Care What Happened at GAO

Since the outcome at GAO may be decided by a size protest and vice versa, it would arguably be more efficient to let one process reach completion, then pursue the other process. As one protester recently discovered, efficiency isn’t a consideration for determining if a protest is timely.

Glacier Technologies, LLC, SBA No. SIZ-6217 (May 31, 2023), involved a USDA procurement for program and security management support services. An award was made on May 13, 2022, to Dynamo Technologies, LLC. Concurrently, USDA executed a contract with Dynamo.

Glacier protested the award to GAO. After briefing the issues, GAO conducted outcome prediction alternative dispute resolution with the parties where it indicated it would likely sustain the protest. In response, USDA elected to take a limited corrective action to address the issues identified by GAO. Importantly, USDA did not cancel the award to Dynamo.

Following the corrective action, Dynamo remained the awardee. On September 23, 2022, Glacier filed a size protest alleging that Dynamo was unusually reliant on an ostensible subcontractor to perform the work. The SBA Area Office dismissed the protest as untimely. According to the Area Office, Glacier had five business days after being notified of Dynamo’s award on May 13, 2022, to protest. Having failed to do so, any subsequent protest was untimely.

Glacier subsequently appealed the dismissal, which OHA denied. Critical to OHA’s decision was the fact that the contract was awarded to Dynamo concurrent with the first award in May 2022. When corrective action was taken in response to the GAO protest, the award to Dynamo was not cancelled. As such, no new “window” for protest opened when the second award decision was made in September. In short, Glacier missed its chance for a size protest, GAO victory notwithstanding.

OHA’s decision in Glacier is a cautionary tale for potential size protest challengers. When it comes to timeliness, the OHA right hand doesn’t care what the GAO left hand is doing.