Having discussed protest grounds you cannot or should not raise ( here and here), we turn now to the first in a series of grounds that could result in a sustained protest: Latent Ambiguities and Non-Apparent Solicitation Defects.
We’ve previously noted the rule that, to challenge the terms of a solicitation, a protester generally must do so before the date set for receipt of proposals. This rule is designed to prevent companies from rolling the dice on a bid and then, after they lose, complaining to the GAO about how messed up the solicitation was. If an offeror submits a proposal against a solicitation it thought was unfair, unclear, or otherwise defective without first objecting, the GAO (and the Court of Federal Claims, for that matter) won’t show any sympathy in a post-award protest. That’s what pre-award protests are for.
There is, however, an important exception to this rule. The GAO’s regulation on protests due before the time set for receipt of proposals applies only to “[p]rotests based upon alleged improprieties in a solicitation which are apparent prior to bid opening or the time set for receipt of initial proposals [or revised proposals, for apparent improprieties introduced by an amendment].” 4 C.F.R. § 21.2(a)(1) (emphasis added). If a solicitation impropriety is not “apparent” until after proposals have been submitted, then the 10-day timeliness clock applies instead. 4 C.F.R. § 21.2(a)(2).
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