Yet Another Timeliness Trap for the Unsuspecting Protester: A Pre-Award Agency-Level Protest Is Functionally Denied as of the Closing Date for Receipt of Proposals, Even if the Agency Actually Denies it Later

Generally, a GAO protest challenging the terms of a solicitation is timely if filed within 10 days after the denial of an agency-level protest, “even if filed after bid opening or the closing time for receipt of proposals.”  4 C.F.R. § 21.2(a)(3).  Accordingly, the salient consideration for determining when that 10-day clock begins to run is when the agency denies the agency-level protest.  But in Marathon Medical Corp., B-422168.2, February 14, 2024, GAO held that if an agency has not ruled on a pre-award agency-level protest as of the closing date for receipt of proposals, then the protest is deemed denied as of that date—and the protester’s clock for filing a GAO protest begins to run—even if the agency later issues an actual decision denying the protest. 

Marathon considered a protest challenging the terms of a Department of Veterans Affairs (VA) solicitation for commercial medical supplies.  On November 29, Marathon filed an agency-level protest challenging the solicitation’s inclusion of the non-manufacturer rule at FAR 52.219-33, claiming the rule would preclude small-business participation in the procurement.  Marathon’s agency protest was timely, because it was filed three days before the December 1 deadline for proposal submissions.  On January 17, 2024, the VA issued a written decision denying Marathon’s agency-level protest.  Marathon filed a protest at GAO within ten days of that denial. 

GAO held Marathon’s latter protest was untimely.  In so doing, GAO did not dispute that Marathon’s agency-level protest was timely filed.  Instead, GAO explained that once the December 1, 2023 closing date for receipt of proposals passed without any agency action on the agency-level protest, Marathon was on notice that the agency would not undertake the requested corrective action.  Thus, Marathon’s GAO filing clock began to run on December 1, not when the VA later issued a written denial.  In other words, the VA’s January 17 decision was a nullity.

Thus, protesters must beware that, if an agency proceeds with acceptance of proposals or quotes despite the pendency of an agency-level protest, then the agency has functionally denied the protest and the 10-day clock for filing at GAO has begun to run. 

Key Takeaways

1. Agency-level solicitation challenges should be filed well in advance of proposal submission deadlines and explicitly request that the agency extend, suspend, or cancel the submission deadline. In the absence of sufficient time for an agency to rule, a potential protester should consider the utility, if any, of filing at the agency, as opposed to proceeding directly to GAO.
2. Protesters must ensure that they are tracking the submission deadline and are prepared to file at GAO if the deadline is not extended, suspended, or cancelled.