Albacore Group, LLC (030ADV22R0079)

B-421801 Aug 16, 2023 Jump To VIEW DECISION DOWNLOADS RELATED PAGES GAO CONTACTS Highlights NikSoft Systems Corporation, of Reston, Virginia, protests the exclusion of its proposal from the competitive range under solicitation No. 030ADV22R0079, which was issued by the Library of Congress (LOC) to establish multiple indefinite-delivery, indefinite-quantity contracts for Agile system development and support services. The protester argues that the agency unreasonably evaluated its proposal, resulting in the improper exclusion of its proposal from the competitive range. NikSoft submitted its protest to our Office after having received a decision from LOC that its pre-award debriefing response constituted an agency-level protest, which the agency denied as untimely filed because it was filed more than 10 days after the protester was notified of its exclusion from the competitive range. We dismiss the protest. View Decision Decision Matter of: NikSoft Systems Corporation File: B-421801 Date: August 16, 2023 Manesh Gupta, for the protester. Emily Vartanian, Esq., Library of Congress, for the agency. Paula A. Williams, Esq., Michael Willems, Esq., and Evan D. Wesser, Esq., Office of the General Counsel, GAO, participated in the preparation of the decision. DIGEST Protest to GAO of the exclusion of the protester’s proposal from the competitive range is untimely filed where the matter was initially protested to the contracting agency but was not filed with the agency within 10 days of the date that the protester learned the basis of its protest; the timeliness exception in GAO’s Bid Protest Regulations for filing a protest with GAO after receipt of a required debriefing does not apply to agency-level protests. DECISION NikSoft Systems Corporation, of Reston, Virginia, protests the exclusion of its proposal from the competitive range under solicitation No. 030ADV22R0079, which was issued by the Library of Congress (LOC) to establish multiple indefinite-delivery, indefinite-quantity contracts for Agile system development and support services. The protester argues that the agency unreasonably evaluated its proposal, resulting in the improper exclusion of its proposal from the competitive range. NikSoft submitted its protest to our Office after having received a decision from LOC that its pre-award debriefing response constituted an agency-level protest, which the agency denied as untimely filed because it was filed more than 10 days after the protester was notified of its exclusion from the competitive range. We dismiss the protest. Under our Bid Protest Regulations, a matter initially filed with a contracting activity will be considered timely by our Office only if the agency protest was filed within the time limits provided by our regulations, unless the contracting agency imposes a more stringent time for filing, in which case the agency’s time for filing will control. 4 C.F.R. § 21.2(a)(3). Where, as here, the protester is challenging its exclusion from the competitive range, the protester was required to file its agency-level protest within 10 days of when it knew or should have known it was excluded from the competition. See 4 C.F.R. § 21.2(a)(2). Here, the record indicates that on June 15, 2023, the agency notified NikSoft that its proposal was not among the most highly rated proposals and was excluded from the competitive range. The notification provided a summary of the agency’s evaluation of the protester’s proposal, including strengths and two weaknesses in its technical approach. Req. for Dismissal exh. A, Notification of Exclusion at 13-14.[1] On June 16, the protester requested that the agency provide a pre-award debriefing. Id., exh. B, Request for Debrief at 16. The agency emailed the debriefing to the protester on June 30.[2] Id., exh. B, Pre-Award Debrief Letter at 18-21. The debriefing letter included nearly verbatim information from the notification of exclusion from the competitive range explaining the basis for the two technical weaknesses in NikSoft’s proposal. Id. at 20. The debriefing letter also stated that the protester could submit questions to the agency no later than July 5. Id. at 21. On July 6, LOC received an email response from NikSoft.[3] Id., exh. C, Resp. to Pre-Award Debrief at 23-24. In the response, NikSoft stated that it “disagree[d] with the two weaknesses specified in page 3 of [LOC’s] Preaward Debriefing Letter” and provided a rebuttal to each identified evaluation weakness. Id. In addition to its disagreement with the assigned weaknesses, NikSoft requested that the agency “take a closer look to reevaluate and reconsider its current . . . determination” to exclude its proposal from the competitive range. Id. at 24.