The Government Accountability Office (GAO) shows no mercy in the strict application of its timeliness rules. In Prudential Protective Services, LLC (PPS), a government contractor attempted to protest what it viewed as an improper noncompetitive task order issued by the U.S. Census Bureau under a Federal Supply Schedule contract.1

Under the GAO’s strict timeliness requirements, 4 C.F.R. § 21.2(a)(2), protests of an award must be filed “not later than 10 days after the basis of protest is known or should have been known (whichever is earlier).”2 A contractor “should” know of any protest basis included in a notice posted on the official governmentwide point of entry (GPE)3 website at https://beta.sam.gov. This is constructive notice, and when properly given by the agency, it is absolute.

The Census Bureau did post notice of the award on beta.SAM.gov. Regardless, PPS filed a protest fourteen days later arguing that as the agency previously posted all notices related to this procurement on both beta.SAM.gov and GSA’s e-Buy website, the latter of which PPS “diligently monitor[ed],” notice on the former alone was insufficient. PPS said it happened to learn of the beta.SAM.gov notice, which it had not been monitoring, “only by chance.” PPS essentially argued that having established the practice of dual postings, the agency assumed an obligation to do so that rendered its solo notice on beta.SAM.gov is insufficient.

The GAO disagreed. Under federal regulation, posting on the GPE — beta.SAM.gov — is sufficient to put a contractor on notice of an award. The GAO dismissed PPS’s protest for untimeliness without no consideration of the merits of its argument.

Now as explained in Gulf Civilization General Trading & Contracting Company, there is a limited fact situation in which an agency’s posting on beta.SAM.gov will not serve as constructive notice.4 In Gulf Civilization, the Defense Logistics Agency issued a solicitation on Mach 1 for fixed-price contract for a six-month base period and two six-month option periods, with the winning quotation just under $700,000. Numerous contractors submitted timely quotations, with the agency posting its award announcement on beta.SAM.gov on the day of award, April 17. Approximately three weeks later, the incumbent contractor — who was not the awardee — asked the contracting officer for an update, only to learn of the previously-announced decision. The disappointed incumbent protested both the price and non-price evaluations within 10 days of its communication with the contracting officer, on which it relied for actual notice of the agency’s award decision.

Despite the fact that the agency had posted the award notice on the proper GPE website,5 the GAO found the incumbent’s protest timely filed under 4 C.F.R. § 21.2(a)(2). The agency’s downfall was its failure to provide sufficient information in its notice to allow a contractor to actually connect the April 17 award with the earlier March 1 solicitation. In particular, the agency’s award notice failed to include either the solicitation number or a link to the original solicitation posting, and the titles of the award notice and solicitation were completely different, making any connection between the two impossible.

The takeaway from the GAO’s constructive notice caselaw is clear. First, closely monitor beta.SAM.gov to preserve all your contracting opportunities, including your right to challenge agency decisions. Second, if you protest, file timely or face dismissal. And finally, in the unlikely — but possible — scenario in which the agency’s beta.SAM.gov is insufficient, act within 10 days of receipt of actual notice of any agency decision.

 

About the Author

Rachel Leahey is an associate with Fluet who specializes in representing, advising, and counseling clients in government contracting matters. As part of the Government Contracts practice group, Ms. Leahey guides contractors through the maze of applicable rules and regulations to enable corporate success.

[1] Prudential Protective Services, LLC, B- 418869, 2020 WL 4746590 (Comp. Gen. Aug. 13, 2020).

[2] An exception—not applicable here—exists for protests “challenging a procurement conducted on the basis of competitive proposals under which a debriefing is requested and, when requested, is required.”  4 C.F.R. § 21.2(a)(2).

[3] “Governmentwide point of entry (GPE) means the single point where Government business opportunities greater than $25,000, including synopses of proposed contract actions, solicitations, and associated information, can be accessed electronically by the public. The GPE is located at [https://beta.sam.gov].”  FAR 2.101; see also Prudential Protective Servs., LLC, B- 418869, 2020 WL 4746590 at *2 n.3 (Comp. Gen. Aug. 13, 2020) (explaining that https://beta.sam.gov replaced www.fbo.gov, the previous GPE listed in FAR 2.101).

[4] Gulf Civilization General Trading & Contracting Co., B- 417586, 2019 WL 4011487 (Comp. Gen. Aug. 23, 2019).

[5] The GPE was then www.FBO.gov, which has been replaced by the current GPE, https://beta.sam.gov/.