In latest edition of The Wright Toolbox:
Be Careful of Agency Communications That Could Be Construed as Agency Level Protests
I have written about this issue in the past, but it is important to give a refresher. In Matter of: Rotair Aerospace Corp., B-421381, 2023 CPD P 99, 2023 WL 3092046, the GAO dismissed a protest as untimely because the protester’s previous correspondence with the agency was deemed to constitute an agency-level protest, and the agency’s subsequent response to the communication constituted adverse agency action. The protest was not filed within 10 calendar days of the adverse agency action.
Rotair Aerospace Corporation (“Rotair”), a small business from Connecticut, protested the Defense Logistics Agency’s (DLA) decision to award a sole-source contract to The Boeing Company (“Boeing”). The solicitation involved helicopter weapon system spare parts. The presolicitation notice stated that the procurement was restricted to Boeing, the original equipment manufacturer, pursuant to FAR section 6.302-1, because Boeing was the only approved source for the required parts. Despite stating that the requirement was restricted to Boeing, the notice invited firms that could produce the required items to identify themselves and seek source approval in order to compete for future solicitations.
Rotair sent a “formal objection” letter to the agency via email, objecting to the presolicitation notice and the information contained therein based on the following grounds: (1) the agency was mistaken in its belief that it did not have ownership rights to the complete technical data package required to manufacture the parts, and any claim by Boeing arguing otherwise was incorrect; (2) the protester in fact was in possession of the technical data package required to manufacture the parts, and was thus fully capable of producing them, therefore establishing it was an eligible approved source; and (3) the agency lacked justification for its decision to bundle the arm assembly and bell crank parts into the same procurement.
After not receiving a response from DLA, Rotair again emailed the agency stating that “[s]ince issuing the attached objection letter to the presolicitation . . . we have noted that the solicitation has been issued. However, we did not receive a formal acknowledgement of our concerns addressed within the objection letter. Please advise.” DLA responded to Rotair via email stating that although it is the procuring agency, it is the Army, and specifically the Army’s Aviation and Missile Command System Readiness Directorate, Sustainment Division that has the sole authority to determine approved sources for these parts. The agency advised that all prospective offerors seeking to submit a proposal for these spare parts are required to be an Army approved source, and any inquiries or concerns regarding the source approval should thus be directed to the Army. The agency also referenced prior correspondence between the protester and the Army, in which the Army informed the protester that it had been removed as an approved source for the parts and could not bid on future solicitations for the arm assembly.
The RFP established a closing date of January 10, 2023, and on January 9, Rotair filed the instant protest. Boeing filed a request for dismissal arguing that the protest was untimely, because the protester was required to file its protest with within 10 days of adverse agency action with respect to an agency-level protest. Rotair denied that its objection letter to DLA was an agency-level protest, and, that the agency’s response did not amount to adverse agency action.
The GAO pointed out that its regulations contain “strict rules for the timely submission of protests” and where a protest has first been filed with a contracting activity, “any subsequent protest to the GAO must be filed within 10 calendar days of actual or constructive knowledge of initial adverse agency action.” The 10 day filing deadline after adverse action must be met even if the end of the 10–day time period for filing occurs prior to the deadline for receipt of proposals.
Rotair argued that its objection letter was not an agency-level protest because it was in response to a presolicitation notice, and thus could not be an agency-level protest. Next, the protester contended that its follow-up email to DLA cannot be considered an agency-level protest, because the text of the email, only a few sentences in its entirety, did not request any specific relief from the agency. Further, the protester maintained that the email was merely an objection to the presolicitation notice, and thus could not be considered a protest for the same reason as the objection letter.
The GAO noted that an agency-level protest must include, among other things, a request for a ruling by the agency and a statement requesting a form of relief. FAR 33.103(d)(2)(v)-(vi). However, “a letter or email does not have to explicitly state that it is intended as a protest for it to be so considered, it must, at least, express dissatisfaction with an agency decision and request corrective action.” Silver Investments, Inc., B–419028, Oct. 26, 2020, 2020 CPD ¶332 at 4. The GAO held “[t]o that end, our Office has consistently stated that a written statement must convey the intent to protest by a specific expression of dissatisfaction with the agency’s actions and a request for relief, as opposed to a statement that merely expresses a suggestion, hope, or expectation.”
The GAO sidestepped the question of whether Rotair could have validly protested the presolicitation notice in this instance through the filing of its letter of objection to the agency, because it found that the follow up email was an agency-level protest challenging the terms of the final solicitation, by virtue of the fact that the email reincorporated and reasserted all of the objections to the presolicitation notice from its earlier letter. The GAO further found that the objection letter met the definition of an agency protest.
With respect to the “adverse action” requirement, the GAO noted that the term “adverse agency action” means any action or inaction on the part of a contracting agency that is prejudicial to the position taken in a protest filed. The agency’s response to the protester’s letter and email was prejudicial to the protester’s position. By choosing not to address any of these issues, and instead directing the protester to the proper source approval authority for the parts in question, the agency’s response indicated that it would not grant the relief requested by the protester. The agency’s response was implicitly prejudicial to Rotair’s position, because it demonstrated that the agency could not allow the protester to compete under the solicitation as written because the protester was not an approved source. The response also indicated that the agency was proceeding with the procurement in the manner prescribed by the solicitation, which is clearly contrary to what Rotair requested.
The take-away here is that bidders must be mindful that their pre-award communications with the government could be construed as an agency level protest and that the time for filing a protest will then run from any adverse “action or inaction” of the government in response.
If you have any questions regarding the matters addressed herein, please contact any member of the WCS Government Contracts practice group.