A bid protest filing with the U.S. Government Accountability Office will be deemed to be filed on a particular day if it is filed before 5:31 p.m. Eastern Standard Time , according to a recent GAO bid protest decision.
The GAO’s decision in Government Acquisitions, Inc., B-408426, B-408426.2 (Sept. 17, 2013) clarifies that the GAO’s 5:30 p.m. deadline allows for a timely filing “until the clock reaches 5:31 p.m.” Unfortunately for my own curiosity, however, the decision does not answer the more interesting question of what on earth the protester was thinking when it filed at 35 seconds after 5:30 p.m.
The Government Acquisitions GAO bid protest decision involved a VA procurement for IT hardware and incidental services. After receiving a debriefing, Government Acquisitions, Inc. filed a GAO bid protest challenging numerous aspects of the evaluation and source selection. The VA filed an agency report defending its award decision.
Under the GAO’s bid protest regulations, a protester must file “comments” on an agency report within 10 days after receipt of the agency report, or the protest will be dismissed. Similarly, supplemental bases of protest first discovered by the protester by reviewing the agency report ordinarily must be filed within 10 days. The GAO’s timeliness rules dictate that a document is considered “filed” when it is received by the GAO, not when it is transmitted by the protester.
On the 10th day following its receipt of the agency report, GAI electronically filed its comments and a supplemental protest. GAI’s filing was received by the GAO at 5:30:35 p.m., that is, 35 seconds after 5:30 p.m. The VA and the awardees argued that GAI’s protest should be dismissed as untimely because neither the comments nor the supplemental protest were received by 5:30 p.m.
The GAO noted that its regulations “do not address whether the time for filing a document expires at 5:30:00 p.m. or after 5:30:59 p.m.” The GAO concluded, “[w]e think the number of seconds after the time becomes 5:30 p.m. need not be considered in our analysis of timeliness.” Thus, “for GAO filings, the time of filing will be viewed as 5:30 p.m., until the clock reaches 5:31 p.m.” The GAO declined to dismiss GAI’s protest as untimely, but ultimately denied the protest on the merits.
The Government Acquisitions case offers an interesting clarification of the GAO’s timeliness rules, albeit one that hopefully will not often be needed by protesters. When a protester files so late that timeliness turns on a matter of mere seconds, the protester is playing with fire and runs a very real risk that the filing will not be timely received by the GAO–regardless of whether “timely” is deemed to be 5:30:00 p.m. or 5:30:59 p.m.