In a prior alert, we discussed the recently published decision in MCR Fed., LLC, B-416654.2, Dec. 18, 2018 where GAO held that the agency failed to provide the protester with a sufficient amount of time to submit its final proposal revisions. That decision was noteworthy because GAO rarely finds even very short response times to be unreasonable in light of the contracting officer’s broad discretion in this area. See, e.g., USA Info. Sys., Inc., B–291488, Dec. 2, 2002. Although GAO found that an eight-day response time was unreasonable under the circumstances presented in MCR Federal, GAO denied the agency’s request to define what would have been a reasonable amount of time in that case.
Nor did GAO otherwise identify a minimum number of days that agencies generally must provide for offerors to submit proposal revisions in response to amendments or discussions.[1] And indeed, GAO decisions show that it may find the same number of days both reasonable and unreasonable, sustaining one protest and denying another where offerors challenged a three-day response time. Compare Crowley Am. Transp., Inc., B-259599, June 19, 1995 with Fin. Asset Mgmt. Sys., Inc., B-409722.9, Apr. 24, 2015. Instead of setting a bright line, minimum days rule, GAO routinely states that the circumstances surrounding the procurement will govern.
So when should offerors challenge proposal revision response times?
In short, offerors should consider protesting response times when they cannot practically accomplish the tasks required by the issues raised in discussions or by solicitation amendments within the allotted amount of time.
GAO has sustained protests that challenged the proposal response deadline where offerors were required to make significant proposal revisions. For example, in Latvian Connection, LLC, B-411489, Aug. 11, 2015, GAO found two days an unreasonable amount of time for the offeror “to prepare a revised proposal addressing the new sunshade canopy dimensions.” Similarly, as we noted in our alert regarding MCR Federal, the GAO found that eight days was insufficient for the offeror to make substantial changes to its proposal, which necessarily included hiring a new workforce.
In contrast, GAO is more likely to find a short response time reasonable when an amendment makes only minor changes to the solicitation. For example, GAO found a three-day response time reasonable in Fin. Asset Mgmt. Sys., Inc., B-409722.9, Apr. 24, 2015 even though the amendment included agency answers to 369 offeror questions because, despite the sheer number of questions, the answers “did not revise solicitation terms and several questions were repetitious.” Similarly, in Harmonia Holdings, LLC, B-407186.2, Mar. 5, 2013, the amendment only pointed to other information that was already released to offerors and included details that “were not necessary for the preparation of a proposal.”
Even where significant offeror effort is required, GAO may still uphold a short proposal response time if the agency can show a compelling reason for such urgency. For example, GAO found a three-day extension reasonable in Crowley Am. Transp., Inc., B-259599, June 19, 1995 in part because the agency “provided as much time as it could afford” given the imminent need “for transportation of sustainment cargo in connection with the U.S. mission in Haiti, ‘Operation Uphold Democracy.’”
Neither procurement regulations nor GAO set out a bright line minimum time for offerors to submit proposal revisions required by discussions or solicitation amendments. But GAO has sustained challenges to those response times where the circumstances demonstrate that the protester cannot practically meet the deadline or the agency fails to provide a compelling reason for setting it in the first place. See e.g. MCR Fed., LLC, B-416654.2; Latvian Connection, LLC, B-411489. Importantly, protesters bear the burden to clearly articulate why the response time adversely affects their proposal revisions. In Coulson Aviation (USA), Inc., B-411306, July 8, 2015, GAO denied the protest because the protester failed to explain why the amendments “represented material changes to the terms of the solicitation or what it would have done differently to enhance its proposal” if it was given additional time.
When faced with a proposal revision deadline you think too short, consider engaging with the agency for an extension as soon as practicable. But remember, a protest challenging that deadline must be filed prior to the deadline, or it will most likely be waived. And the proposal revision must be submitted prior to the deadline to ensure it remains in the competition. For these reasons, offerors should consider proceeding along all three parallel lines simultaneously as soon as a short response time is announced: engage with the agency for an extension, engage counsel to prepare a protest, and encourage the proposal team to meet the deadline to the maximum extent practicable.
[1] This article discusses only GAO decisions addressing the reasonableness of agency-established proposal response times following solicitation amendments or discussions. Note that procurement laws and regulations do provide minimum initial proposal response times in certain situations. See, e.g., FAR §§ 5.203(c) and (e).