(a)(1) Protests based upon alleged improprieties in a solicitation which are apparent prior to bid opening or the time set for receipt of initial proposals shall be filed prior to bid opening or the time set for receipt of initial proposals. In procurements where proposals are requested, alleged improprieties which do not exist in the initial solicitation but which are subsequently incorporated into the solicitation must be protested not later than the next closing time for receipt of proposals following the incorporation. If no closing time has been established, or if no further submissions are anticipated, any alleged solicitation improprieties must be protested within 10 days of when the alleged impropriety was known or should have been known.
(2) Protests other than those covered by paragraph (a)(1) of this section shall be filed not later than 10 days after the basis of protest is known or should have been known (whichever is earlier), with the exception of protests challenging a procurement conducted on the basis of competitive proposals under which a debriefing is requested and, when requested, is required. In such cases, with respect to any protest basis which is known or should have been known either before or as a result of the debriefing, and which does not involve an alleged solicitation impropriety covered by paragraph (a)(1) of this section, the initial protest shall not be filed before the debriefing date offered to the protester, but shall be filed not later than 10 days after the date on which the debriefing is held.
(3) If a timely agency-level protest was previously filed, any subsequent protest to GAO must be filed within 10 days of actual or constructive knowledge of initial adverse agency action, provided the agency-level protest was filed in accordance with paragraphs (a)(1) and (2) of this section, unless the agency imposes a more stringent time for filing, in which case the agency's time for filing will control. In cases where an alleged impropriety in a solicitation is timely protested to an agency, any subsequent protest to GAO will be considered timely if filed within the 10-day period provided by this paragraph, even if filed after bid opening or the closing time for receipt of proposals.
(b) Protests untimely on their face may be dismissed. A protester shall include in its protest all information establishing the timeliness of the protest; a protester will not be permitted to introduce for the first time in a request for reconsideration information necessary to establish that the protest was timely.
(c) GAO, for good cause shown, or where it determines that a protest raises issues significant to the procurement system, may consider an untimely protest.
[61 FR 39042, July 26, 1996, as amended at 83 FR 13823, Apr. 2, 2018]
Notes of Decisions
Weeks Marine, Inc. v. United States, 575 F.3d 1352 (Fed. Cir. 2009).
· cites it 2× “In holding that Blue & Gold had waived its opportunity to protest, we noted the GAO regulation, 4 C.F.R. § 21.2 (a)(1), indicating that GAO protests “based upon alleged improprieties in a solicitation which are apparent prior to .”
Blue & Gold Fleet, L.P. v. United States, 492 F.3d 1308 (Fed. Cir. 2007).
“Specifically, 4 C.F.R. § 21.2 (a)(1) requires that “[protests based upon alleged improprieties in a solicitation which are apparent prior to bid opening or the time set for receipt of initial proposals shall be filed prior to bid opening or the time set for receipt of initial…”
Benchmade Knife Co. v. United States, 79 Fed. Cl. 731 (Fed. Cl. 2007).
· cites it 2× “In that decision, the Federal Circuit cited the GAO’s application of a similar rule in its bid protest regulations, 4 C.F.R. § 21.2 (a)(1), requiring protests based upon alleged solicitation improprieties to be filed prior to the time set for receipt of initial proposals.”
Heritage of Am., LLC v. United States, 77 Fed. Cl. 66 (Fed. Cl. 2007).
· cites it 2× “” 4 C.F.R. § 21.2 (a)(1). 6 While this Court has discretion to employ the GAO’s timeliness requirements, see, e.”
Comint Sys. Corp. v. United States, 700 F.3d 1377 (Fed. Cir. 2012).
“See 4 C.F.R § 21.2. Unless the basis for the protest becomes apparent later than ten days before the award, the GAO does not permit a disappointed bidder to wait until after the award.”
Aerolease Long Beach v. United States, 31 Fed. Cl. 342 (Fed. Cl. 1994).
· cites it 2× “See 4 C.F.R. § 21.2 (a)(1).(1992) (“Protests based upon alleged improprieties in a solicitation which are apparent prior to bid opening or the time set for receipt of initial proposals shall be filed prior to bid opening or the time set for receipt of initial proposals.”
Raytheon Co. v. United States, 121 Fed. Cl. 135 (Fed. Cl. 2015).
· cites it 2× “5 (e), and 4 C.F.R. § 21.2 (c)). And, “[w]hen the GAO acts in violation of the law, the act lacks a rational basis.”
DGR Assocs., Inc. v. United States, 94 Fed. Cl. 189 (Fed. Cl. 2010).
· cites it 2× “See GAO Regulations, 4 C.F.R. § 21.2 (a) (2009). Protests at the GAO based upon alleged improprieties in a solicitation “shall be filed prior to bid opening or the time set for receipt of initial proposals.”
Transatlantic Lines LLC v. United States, 68 Fed. Cl. 48 (Fed. Cl. 2005).
· cites it 2× “In fact, it is not binding on GAO— FAR provides that “GAO, for good cause shown, or where it determines that a protest raises issues significant to the procurement system, may consider an untimely protest.”
— 4 C.F.R. § 21.2(a)(2) — 1 case
— 4 C.F.R. § 21.2(a)(I) — 1 case
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