Chief Judge of the Court of Federal Claims (COFC) Emily C. Hewitt has just bounced a protest because the protester waived its protest by delay in raising a complaint about language in the RFP. The protester complained that the RFP requirement that offerors had to be on the SBA's list of qualified HUBZone contractors at the time of proposal submission and at the time of award was illegal and that certification is only needed at the time of award. The court disagrees but in any event holds that any alleged defect in the RFP must be raised prior to the time for submission of proposals or be deemed to have been waived.
In this post award protest, the Army set aside a logistical support services contract for exclusive HUBZone contractor participation. The protester was the incumbent whose certification lapsed and was not reinstated until after proposals were due, but before award. The RFP required certification at the time proposals were submitted. The Army refused to consider protester's proposal because it was not on the list of certified HUBZone firms. FAR, Army regulations and the RFP all required offerors to represent whether on the date of the representation they were HUBZone certified and no material changes had occurred since certification.
Although challenged as lacking standing to sue, protester, said the court, was an actual bidder possessing a direct economic interest in the award of the contract and thus is an interested party having standing to bring the protest in court.
Chief Judge Hewitt determined the protester had waived its right to challenge the RFP requirement and she dismissed the protest as untimely.
The government argued successfully that rather than making a timely objection to the solicitation's requirement that an offeror's proposal, when submitted, contain a representation that the offeror then appears on the list of qualified HUBZone contractors, protester "elected to roll the dice and submit its proposal anyway." How many times have we seen this happen? The contractor elects to roll the dice hoping against hope that a miracle may occur. Yet, the only prudent course of action is to raise the issue with the contracting officer and protest solicitation language if it is necessary. Otherwise, don't bid.
An important practical lesson Chief Judge Hewitt teaches us is that it is not enough to casually mention the RFP problem to the contract specialist. One must raise the issue with the contracting officer and make a record of the complaint. More importantly, one must formally protest improper RFP language prior to proposal submission or waive forever the opportunity.