Among all the various websites that government contractors have to monitor, which is the most important one? According to a recent GAO decision, it’s beta.SAM.gov because notice there creates an un-rebuttable presumption that a contractor received notice of agency action. In this case, even though the agency had not complied with all of the required sole-source notices, GAO held that the contractor’s protest was untimely because the clock for filing a protest started when the agency posted the award notice on beta.SAM.gov.
When the Census Bureau needed protective security officer services on GSA’s Federal Supply Schedule, it posted its need on “e-Buy,” GSA’s electronic request for quotation system. Vendors, including Prudential Protective Services, LLC (PPS), submitted their quotes via e-Buy. After the Census Bureau awarded the work to North American Security, Inc. (NAS), PPS protested to GAO. The agency responded by agreeing to take corrective action, which included terminating the task order and re-competing the requirement to include preparing and issuing a new solicitation.
Time passed. Over the course of the next three months, PPS followed up with the agency to learn the status of the new solicitation and was told that the new solicitation would be issued. However, to meet its current need, the agency decided to issue in the interim a short-term sole-source contract to NAS, the winner of the initial solicitation. The agency put a notice of the sole-source award on the beta.Sam.gov website on June 15, 2020. Fourteen days later, on June 29, PPS protested the sole-source award to GAO.
The Census Bureau asked GAO to dismiss the protest, arguing that it was untimely, having been filed 4 days after the 10-day protest deadline.
PPS seemed to have a good argument: that its protest was timely because the agency failed to follow the notice requirements for the limited sources justification under FAR 8.405–6(a)(2), which required the agency to post the justification not only to the beta.SAM.gov, but also on the website of the ordering activity – which the Census Bureau had not done. PPS stated that it had been monitoring the Census Bureau awards on the website that the agency had used for the initial solicitation, GSA’s e-Buy website.
The agency had put notice of the award on the most important government site: beta.SAM.gov. According to GAO, that site “has been expressly designated by statute and regulation as the official public medium for providing notice of contracting actions by federal agencies.” By law, publication in beta.SAM.gov creates a presumption of constructive notice that cannot be rebutted. Unfortunately for PPS, this presumption “imputes knowledge to a party without regard to the party’s actual knowledge of the matter at issue.”
Thus, GAO had no choice but to deem PPS to have received “constructive notice” of the award starting with the agency’s June 15 publication in beta.SAM.gov. That meant that any PPS protest had to be filed by June 25. Because PPS’s protest was filed on June 29, it was four days too late. GAO dismissed the protest as untimely. Prudential Protective Services, LLC, B-418869, Aug. 13, 2020.
Berenzweig Leonard is teaming up with Red Team Consulting for a monthly newsletter featuring reports on recent contract decisions, recent upcoming contracts, key protest decisions, events, and more. This post was published in the September 2020 newsletter. To sign up for our govcon newsletters, please email [email protected].