Timeliness matters in protests. But what contractors might not realize is that the burden falls upon them to keep tabs on the agency’s management of the competition, even after it’s canceled.
Protesting contractors: Cygnus Corp., Rockville
Contracting agency: Department of Health and Human Services
Protest issue: Whether a contract should have been set-aside for small businesses.
GAO decision, April 11, 2012: Denied in part, dismissed in part.
Post-mortem: The history of this procurement for scientific, professional and technical support services is complicated. HHS had released a request for proposals for a contract that would replace an existing one set aside for small businesses, scheduled to expire in January 2012. The agency then determined that they could instead use another contract that was already in place. HHS canceled the RFP in the fall of 2011 and obtained the services through a contract that had already been awarded to Kelly Services Inc. — a large business.
Cyngus did not act on the HHS decision until the department issued task orders to Kelly in January — at which point they filed their protest with the GAO. One argument that Cygnus made was the HHS had violated the Small Business Act by failing to coordinate with the SBA when it transferred the work from a small business to a large business. In response to a request from the GAO, the SBA provided its view and agreed with Cygnus, further noting that HHS should have set aside the work, since there were small businesses able to meet the requirements.
Unfortunately, Cyngus was too late. HHS argued that the protest was not timely and the GAO agreed — dismissing the allegations.
One of the most crucial and often misunderstood areas of GAO protests is timeliness. Most contractors are aware that they have only 10 days from award or when they were aware of protest grounds. But this decision highlights a case where the timeliness rules are less clear. The GAO said that “Cygnus should have been aware” of the contract with Kelly, because it was published in FedBizOpps, the government’s online database of opportunities. According to the GAO, publication in FedBizOpps gave Cygnus “constructive notice” of the terms of the solicitation for the contract between HHS and Kelly.
While arduous, especially for small businesses, the fact is this: the burden falls upon the contractors to be aware not only of the solicitation they are competing for, but every other solicitation or award that could be related.