If you aim to win protests, time could be an invaluable ally

Timing of events is a major subject of controversy in contract awards and protests. The
Air Force was involved recently in two protests that show how timeliness problems can
injure the innocent and protect the guilty.

A multiple-award contract drew attention when a court overturned a decision by the
General Services Administration Board of Contract Appeals. In its ruling on the protest,
the board had agreed with the protester that the Air Force had misapplied its selection
criteria. The board had ordered changes in the agency's procurement authority, effectively
terminating two of five contract awards during the base year of operation.

The two unhappy awardees appealed to the U.S. Court of Appeals, where they succeeded in
overturning the GSBCA ruling. But the contractors lost valuable time and business.

During the lapse between the decisions of the board and the appeals court, the agency
could not place orders against the two contracts in question. By the time the board
changed its decision on remand, the contract was into the second of its two ordering
periods. The agency welcomed the two contractors back, but much damage had been done.

At the General Accounting Office, the culprit was another agency. Before contract
award, the Air Force had responded to a protest based on small-business size standards by
requesting a determination from the Small Business Administration.

The SBA is obligated under the Federal Acquisition Regulation to issue decisions on
size-standard protests within 10 working days after it gets the supporting documentation.
The Air Force had complied with its obligation, but other circumstances cited by the SBA,
which should have extended the 10-day period, prevented timely action. Various
circumstances contributed to the problem, including a government furlough and a delay in
response by the responsible SBA official for personal reasons.

The SBA took too long to issue a formal decision,'' as required by the FAR, even though
its representatives claimed to have notified the contracting officer informally that the
protest was valid insofar as the awardee did not satisfy the small-business size
standards, nor did it show how as a small-business contractor it could satisfy the
"50 percent rule," which requires the small business to do the majority of the
work itself.

The Air Force did not create complex situations in either of these cases. However,
circumstances show that time can work against the innocent as well as the not-so-innocent.

Bob Deller is director of market research for Global Systems & Strategies in
Potomac, Md.

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