Earlier this year, GAO unveiled its new Electronic Protest Docketing System (“EPDS”) for bid protests. EPDS serves as the central filing system for all bid protests pursued before GAO. As a courtesy, EPDS will automatically generate a courtesy email notice anytime a new document is filed with GAO.
In a recent Request for Reconsideration, however, GAO was asked to reconsider its dismissal of a protest after the protester failed to receive the automatically-generated EPDS notice that the Agency Report had been filed. GAO held that the protester in question couldn’t rely on its failure to receive the email to avoid the ordinary timeliness rules applicable to GAO bid protests.
Silverback7, Inc.—Reconsideration, B-415311.9 (Comp. Gen. Nov. 15, 2018), involved a procurement for survival, escape, and evasion instruction at Fort Rucker, Alabama. Silverback7 was an unsuccessful offeror and filed a bid protest with GAO through EPDS.
GAO subsequently docketed Silverback7’s protest, and sent the standard docketing letter to the parties. Among the items discussed in the docketing letter was GAO’s policy of dismissing protests when the protester fails to file Comments within 10 days of the agency filing its Agency Report with GAO. The parties were advised the Agency Report was due on October 1. Silverback7’s Comments on the Agency Report would be due 10 days later, on October 11.
The Agency timely filed its agency report with GAO. Silverback7, however, did not file Comments by this date. A week later, GAO dismissed Silverback7’s protest in an unpublished decision.
Following the dismissal, Silverback7 filed a Request for Reconsideration with GAO. Silverback7 argued that dismissal was improper because it was not notified that the agency filed its Agency Report with GAO. According to Silverback7, it had not received any automatically generated email form EPDS when the Agency Report was filed. As such, Silverback7 argued that its failure to timely submit Comments should be excused.
GAO did not agree. As a preliminary matter, GAO reviewed its bid protest regulations with respect to notice. As GAO explained:
[O]ur regulations establish that the act of filing a document in EPDS puts all parties on notice of the filing, essentially establishing a rule of constructive notice with respect to all EPDS filings. By definition the doctrine of constructive notice imputes knowledge to a party without regard to the party’s actual knowledge of the matter at issue.
Thus, according to GAO, the Agency’s mere act of filing the Agency Report in EPDS placed all parties on constructive notice of its presence, regardless of whether a courtesy email was sent.
GAO then turned to Silverback7’s principal argument: that its failure to submit Comments on the Agency Report was excusable because it did not receive a courtesy email from EPDS when the Agency filed its Agency Report. GAO was not persuaded. As GAO explained “the auto-generated EPDS email notifications of new filings in a case are a courtesy provided to parties, they are not a substitute for parties actively checking the EPDS docket for new filings and diligently pursuing the case.” GAO also noted that its EPDS instructions and guidance state that “’it is the user’s responsibility to regularly review the docket for new case developments . . . the failure to receive any system generated emails will not excuse a party’s failure to timely respond to case developments.’” As such, failure to receive the automated message is not an excuse for not meeting a deadline.
As a final point, GAO noted that its decisions have “consistently explained that a protestor must notify GAO when it fails to receive the report by the due date specified in the initial development letters generated by our Office and request an extension because late receipt does not alter the period for submitting comments.” As such, it was Silverback7’s responsibility to timely notify GAO if it did not receive the agency report by the due date established by GAO. Thus, when Silverback7 did not receive a courtesy email or other message from EPDS regarding the filing of the Agency Report by 5:30 PM EST, it was Silverback7’s responsibility to check the EPDS docket and notify GAO that it had not received the Agency Report.
GAO’s decision in Silverback7 is a cautionary tale for protesters relying on GAO’s EPDS system: beware of overreliance on EPDS’s automatically generated filing notification emails. According to GAO, any filing with EPDS places the parties on constructive notice of the filing. Thus, it is prudent to keep close tabs on any active dockets to ensure important filings are not going unnoticed.