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.
Unless an agency designates different business hours, the FAR says that a government agency is deemed to close at 4:30 p.m. local time–not 5:00 p.m., as it would be easy to assume.
In a recent case, the 4:30 p.m. closing time cost an unsuccessful offeror a chance at a GAO protest because the offeror’s debriefing request, sent to the agency at 4:59 p.m., was deemed untimely.
When it comes to timely filing a bid protest, government contractors should keep one overriding principle in mind: late is late, and it probably won’t matter why the protest wasn’t timely received.
GAO recently reaffirmed this principle when it dismissed a bid protest that wasn’t timely received by its new, mandatory Electronic Protest Docketing System.
GAO’s outcome prediction alternative dispute resolution (“ADR”) can be a tempting option for all parties to a protest, as it provides a preview of sorts for GAO’s written decision. A recent GAO decision, however, underscores that despite its relative informality, outcome prediction ADR can have significant repercussions on future protest developments.
GAO’s bid protest regulations provide strict timelines for filing a protest.
Typically, a protest challenging an award must be filed within 10 days after the basis of the protest is known or should have been known. There is an exception to this rule for protests filed after a debriefing, but only when a debriefing was required by the FAR. As one contractor recently discovered, where a debriefing is not required, GAO’s bid protest regulations are not nearly as forgiving.
GAO interprets its bid protest timeliness rules very strictly, as readers of this blog will know. These timeliness rules typically pertain to the initial protest, but are equally important when a protester files a supplemental protest. Often, supplemental protests are filed after the protester receives the agency’s response and comes to learn new information that wasn’t previously available.
If a supplemental protest raises allegations independent of those set forth in the initial protest, the supplemental protest must independently satisfy GAO’s strict timeliness rules. A recent GAO decision shows how easy it can be to slip up on these deadlines when considering a supplemental protest.
Readers of this blog will know that the GAO interprets its protest timeliness rules quite strictly. A recent GAO case provides us with an opportunity to review a nuanced piece of those timeliness rules. Specifically, how withdrawal of an agency-level protest affects the deadline to file a GAO protest, and what counts as a withdrawal of an agency-level protest versus an “initial adverse agency action.”
In this case, the protester lost its GAO protest rights by trying to pursue its agency-level protest with an inspector general’s office rather than with the contracting officer.