GAO Decision Highlights Consequences of “Diligent Pursuit” Rule

In Integration Techs. Grp., Inc., B-419116.3, Dec. 22, 2020, the protester argued that the quotations of the successful vendors should have been found unacceptable because they did not offer products that were manufactured in a Trade Agreements Act (TAA) designated country as required by the solicitation. On August 11, 2020, the agency notified the protester that it had not been selected for an award and provided the names of the five awardees. Several weeks later, on September 2, the product catalog related to this procurement was published on the agency’s website. And on September 10, nearly one month after learning the names of the awardees, the protester received a call from another unsuccessful offeror who informed the protester that it had obtained a copy of the product catalog and had observed that some products on it were not TAA-compliant. Upon close inspection, the protester discovered that all five of the awardees had offered products that were not TAA‑compliant and therefore did not comply with the solicitation’s requirements. Eight days later, on September 18, the protester filed a protest at GAO arguing that the agency failed to follow the solicitation terms when it made awards to offerors who proposed non-TAA compliant products.

The agency moved to dismiss the protest as untimely, arguing that the protester failed to diligently pursue the information providing its basis for protest. The protester responded that its protest was timely because it was filed within 10 days after it learned from the other unsuccessful offeror on September 10 that the five awardees offered products that did not comply with the solicitation’s requirements. The protester further argued that the August 11 notice from the agency did not provide a basis for protest because the notice did not reveal the non-TAA compliant products the awardees had offered. Thus, according to the protester, its protest was timely because that information could not have been obtained from the award notice and only became known to it after the call from the other unsuccessful offeror.

GAO disagreed and dismissed the protest as untimely because the protester did not diligently pursue the information forming the basis for its protest. While GAO agreed with the protester that, the August 11 unsuccessful offeror notice did not disclose the basis for the protest, GAO nevertheless found that the protester did not pursue additional information and instead waited until another offeror contacted it – over five weeks after it received the notice – before acting. GAO noted that before the other offeror’s call, the protester made no effort to obtain the information that formed the basis for its protest. GAO further noted that, after the call, the protester merely examined documents the other offeror provided to it. GAO therefore concluded that there was nothing in the record that indicated the protester would have pursued a protest at all had it not been contacted by the other unsuccessful offeror. Accordingly, GAO held that the protester failed to satisfy the requirement for “diligent pursuit” and dismissed the protest.

The key takeaway from this case is that GAO will dismiss a protest – even when it appears to be a clearly meritorious protest – if the protester does not diligently pursue the information which could provide the basis for its protest. As such, it is imperative that you involve counsel as soon as possible to explore all potential bases for protest. This simple decision can make the difference between a sustained protest and a dismissed protest.