ClockIn Motorola Solutions, Inc., GAO relied on an exception to the timeliness rule to sustain a protest over an Army contract for a land mobile radio system. GAO found the 10-day rule did not bar the protester’s claim because protester’s counsel was unable to share the information supporting the claim with the protester when he received the information. GAO issued the decision on January 28, 2014, and it was published today. The decision highlights the critical role that communication between company personnel and outside counsel plays in a protest and provides an interesting case in which the well-established 10-day rule does not apply.

The Department of the Army, U.S. Army Material Command, awarded the fixed-price land mobile radio system contract to Harris Corporation. In its protest of the award, Motorola  primarily argued that the Agency improperly relaxed the requirement that all proposed radios be included on a specified list of permissible radios. Motorola believed that one of the radios Harris proposed was not on the list. During its debriefing, Motorola requested information concerning the specific model of radio that Harris proposed, arguing it was entitled to the information under FAR 15.506(d)(5) because it was a commercial acquisition. The Agency declined to provide the information as part of the debriefing.

In response to the protest, the agency’s contracting officer’s statement (and legal memorandum) described the radio models that were part of the Harris proposal. One model was produced by Harris and was not on the list of approved radios. Another radio included in Harris’ proposal was manufactured by Motorola. Motorola’s counsel needed to learn more about Motorola radio that Harris proposed to use, so he prepared a redacted version of the CO statement and sought approval from Agency counsel to release it to Motorola. Agency counsel resisted the release, and Motorola’s counsel had to seek assistance from GAO. By the time Motorola’s counsel was able to obtain a redacted version and learn from his client that Harris could not, in fact, obtain the Motorola radios that had been proposed, more than 10 days had elapsed from the date of the Agency’s initial document production. The Agency argued that Motorola’s supplemental protest was untimely; Motorola contended that it could not make the argument until the redacted information was released to the client.

GAO explained the general rule that, in most instances, when information is subject to a protective order and is released to protester’s counsel, the lawyer stands in the shoes of her/his client for purposes of timeliness. However, this case was an exception because Motorola diligently pursued the information by attempting to obtain a redacted version that could be shared with his client and had appropriately exercised an abundance of caution when following the procedures in the protective order (by waiting for Agency’s counsel to consent to the release). In rejecting the agency’s contention that the statute of limitations period ran when it was refusing release of material necessary for Motorola to formulate its position, GAO explained that the agency was unfairly attempting to “benefit from its own dilatory behavior.”

On the merits, GAO found it was unreasonable for the agency to accept Harris’s proposal that included Motorola radios which Harris would have been unable to obtain. (Motorola does not sell the type of radio at issue on the open market, and Motorola would not have sold the radios to a company with which it was directly competing.) In addition, the RFP required offerors to include an original equipment manufacturer attestation with their proposals if they were offering a self-manufactured system or a written agreement if the equipment was being manufactured by another company. The agency unreasonably evaluated Harris’ proposal, which did not include an agreement with Motorola.