Government Cannot Amend Solicitation the Night before Bids are Due

The GAO recently sustained a FAR Part 14 protest of an Army procurement for tree maintenance and landscaping services, holding that the government cannot issue a substantive amendment that required revised bids to be submitted in hard copy the next morning.  Although the Army tried to issue the amendment a week before the scheduled bid opening, the amendment was not actually posted to FBO until 7:00 PM the night before bids were due because of technical difficulties.  The protestor first viewed the amendment the next morning with less than an hour before the deadline and was unable to submit a timely bid.
The Army argued the protest was untimely.  The GAO, however, held that the protest fell within an exception for situations where there are “extremely limited time periods [and] circumstances do not permit filing before bid opening.”  In such cases, the protest must be filed within 10 days from when the protestor knew or should have known of its basis for protest.  Since the protest was filed the day after bids were due, it was timely filed.
Turning to the merits of the protest, GAO explained that FAR 14.202-1 requires agencies to “allow a reasonable period of time for prospective bidders to prepare and submit their bids.”   With respect to amendments, “[w]hat constitutes a reasonable opportunity to respond will depend on the circumstances.”  The GAO held that “the Army failed to allow a reasonable period of time for prospective bidders to prepare and submit their revised bids after the posting of amendment,” whether the time period was measure from the time the amendment was read by the protestor or from when it was posted on FBO.