Speak Now Or Forever Hold Your Peace: The CIO-SP4 Pre-Award Protest Deadline is Approaching

This post has been updated to reflect NITAAC’s extension of the proposal deadline to Aug. 20.

The proposal deadline for CIO-SP4 is approaching. With a max value of $50 billion on the line, countless contractors are working tirelessly to finalize proposals before the deadline.

That date marks another critical milestone—the end of a contractor’s opportunity to protest the terms of the CIO-SP4 solicitation. After the proposal deadline passes, everyone is playing under NITAAC’s rules, reasonable or not.

Let’s address the elephant in the room first—pretty much everyone absent NITAAC agrees—CIO-SP4 is a mess. As of this writing, there have been eight amendments to the CIO-SP4 solicitation and several protests (four of which are still pending). Despite these revisions, uncertainty about CIO-SP4’s requirements linger. With each amendment, NITAAC appears to address one concern while introducing another. Limitations on small business team participation are among the most recent changes causing confusion.

Generally speaking, we agree that NITAAC should pause the CIO-SP4 procurement and reassess its procurement strategy. But all indications are NITAAC plans to push ahead with CIO-SP4 as is.

This raises an important question: is there any way to compel NITAAC to revaluate CIO-SP4? Possibly, but time is running out on that opportunity. The most direct strategy to compel NITAAC to review CIO-SP4 is to file a pre-award bid protest.

But time is running out.

Any pre-award protest must be filed before the deadline for proposal submission. As GAO’s filing regulations put it, “[p]rotests based upon alleged improprieties in a solicitation which are apparent prior to bid opening or the time set for receipt of initial proposals shall be filed prior to bid opening or the time set for receipt of initial proposals.” As of this writing, the deadline for initial CIO-SP4 proposals is August 20, 2021, at 12:00 PM EST.

GAO takes the protest deadline for solicitation issues very seriously. Protests raising challenges to solicitation terms after the deadline for proposal submission are routinely dismissed. We’ve previously covered GAO’s strict filing deadlines for pre-award protests—and the consequences for tardy protesters—on the blog.

Language from GAO’s decision in IBM Corp., B-417596.10 (Comp. Gen. Mar. 17, 2021) drives home the importance of timely protesting ambiguous solicitation terms. This excerpt from a recent GAO decision skewers IBM’s decision to compete under a CIO-SP3 task order procurement IBM believed was ambiguous.

Thus, we begin our analysis with the understanding that IBM elected to compete under a patently ambiguous solicitation—a solicitation the protester itself has consistently asserted lacks critical information necessary for offerors to intelligently develop their respective proposals on a common basis. An offeror that chooses to compete under a patently ambiguous solicitation does so at its own peril and cannot later complain when the agency proceeds in a way inconsistent with its interpretation. . . . We also find IBM’s complaints—that the Army unreasonably declined to provide clarification in response to offerors’ questions on the RFTOP—equally problematic and untimely. When an agency fails to clarify a patently-ambiguous term or solicitation provision, or otherwise satisfactorily resolve a firm’s questions, a firm is required to raise its concerns prior to the next closing date.

GAO was not complimentary of IBM’s decision to compete under a solicitation it believed was ambiguous only to protest those terms after an award was made.

CIO-SP4 could lead to a similar fate. With the smattering of confusing language, CIO-SP4 is bound to trip up more than one contractor. Unfortunately, because everyone is aware of its flaws, any solicitation issues protested after the proposal submission deadline will almost surely be untimely.

In short, the proposal submission date for any government wide acquisition is a monumental deadline and, in the case of CIO-SP4, one that takes on special meaning as it will be the last opportunity offerors have to change the terms of the solicitation.

Absent a successful protest or amendment, CIO-SP4’s die will be cast on August 3, 2021. If you’re a contractor with concerns about the solicitation’s terms, speak now, or forever hold your peace.