October 25, 2019 Procurement Lawyer

Better Late Than Never? A History and Analysis of GAO’s Timeliness Exceptions

by Matthew Moriarty & Ariel Rhines

Matthew Moriarty is a partner with Koprince Law LLC. Summer associate Ariel Rhines contributed to this article.

On May 10, 1972, a company called Panoramic Studios sent a letter to the U.S. General Accounting Office1 protesting the U.S. Army’s selection of an allegedly non-responsible contractor to fulfill a requirement.2 GAO responded that the protest was untimely.3

Like many a frustrated protester, Panoramic Studios did not give up. Digging in to the then-interim bid protest regulations, it noticed that GAO would consider a late protest for “good cause” or “on the basis of a significant issue of procurement practices or procedures[.]”4 Panoramic Studios wrote back with some pointed questions:

  • Does “significant” mean a large sum of money, or a glaringly obvious flaw, or is there a question of principle?
  • What is “good cause?”5

Forty-seven years later, many protesters are still asking the same questions. What is a good cause, and what is a significant issue? Are they connected? GAO’s regulation fails to define either term. But perhaps because the terms are so broad, they’ve been argued a lot. In an effort to define these terms, we looked at over 350 published GAO decisions dating back nearly forty years that discuss in some shape or form this exception to the timeliness rule.

Let’s try to figure it out.

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