Biggest Loser: GAO Dismisses Marines’ Reconsideration Request on Magazine Pouch Weight

A few months ago, we blogged on a sustained GAO decision that concluded the Marines had failed to evaluate offerors in accordance with the Solicitation. Specifically, GAO identified issues with the evaluations of offeror samples, and recommended that the Marines reevaluate offerors. In the wake of GAO’s decision, the Marines filed a request for reconsideration. Unfortunately, the Marines request did not comply precisely with GAO’s filing procedures, resulting in a dismissal.

To understand led to the Marines to requesting reconsideration, we first need to look at what was argued in the initial protest. GAO’s original decision in High Noon Unlimited, Inc., B-417830 (Comp. Gen Nov. 15, 2019), involved a procurement for magazine pouches that could attach to infantry service rifles.

As relevant to High Noon’s initial protest, the solicitation required each magazine pouch to weigh less than 0.24 pounds, including anything necessary to attach the pouches to a rifle. After being denied an award, High Noon protested on the basis that the Marines had improperly evaluated the weight of of the awardee’s pouches because the Marines had omitted the weight of the clips necessary for attaching Awardee’s pouches to the rifles during the weight evaluation. According to High Noon, the weight of these attachment clips would have led the awardee’s submission to exceed the weight requirements.

After reviewing the record, GAO agreed with High Noon that the Marine’s evaluation was flawed. As such, GAO sustained High Noon’s protest and recommend the Marines reevaluate offerors.

This brings us to GAO’s decision in United States Marine Corps—Reconsideration, B-417830.2 (Comp. Gen. Mar. 6, 2020), which involved the Marines’ request for reconsideration of the High Noon decision.

A request for reconsideration is a formal GAO process where any party to a protest may request GAO reevaluate its decision. 4 C.F.R. § 21.14(a). Any reconsideration request must raise errors of either fact or law that undermine GAO’s decision—merely reiterating original protest arguments is insufficient. Importantly, any request for reconsideration must be filed “not later than 10 days after the basis for reconsideration is known or should have been known, whichever is earlier.” 4 C.F.R. § 21.14(b). As a practical matter, the basis for most reconsideration requests is apparent from the face of a decision, so the deadline for filing a reconsideration request is typically 10 days after GAO issues its written decision.

Additionally, GAO’s timing deadlines are quite strict. As GAO’s regulations explain, “[a] document is filed on a particular day when it is received in EPDS by 5:30 p.m., Eastern Time.” 4 C.F.R. § 21.0(g). To be considered “filed” a document must be uploaded to EPDS in accordance with the EPDS instructions.

In the case of the Marines’ request, timing was very important. GAO issued its decision High Noon, sustaining the protest on November 15. Ten days later, on November 25, filed a “Response to GAO’s Sustain Recommendation” through GAO’s Electronic Protest Docketing System (EPDS). For reasons GAO did not elaborate, the Marines waited until very late in the day to file their document. The EPDS filing timestamp was 4:55 p.m.

Roughly a half hour later, at 5:28 p.m., the GAO attorney overseeing the case responded that “[i]n order to file a request for reconsideration, please refer to the instructions in the EPDS User Manual available at GAO’s public website (note the request for reconsideration tab at the left).”

As the GAO attorney alluded, the EPDS User Manual provided instructions for filing a request for reconsideration. Specifically, after a protest has been decided, a new option appears in the case file for reconsideration requests. This is the specified method for filing a request for reconsideration. Until the document is filed through the request for reconsideration portal, it is not considered filed. At 5:59, the Marines refiled their Response to GAO’s Sustain Recommendation as a request for reconsideration, as specified by the EPDS User Manual.

GAO subsequently dismissed the Marines’ request for reconsideration as untimely. GAO explained its decision as follows:

Here, the agency’s 4:55 p.m. filing of a “Response to GAO Sustain Recommendation” entry in the protest docket was not the appropriate portal in EPDS to file its request for reconsideration. The agency did not file its request in the correct portal until 5:59 p.m. Our Regulations are clear that filings received after 5:30 p.m. will be treated as having been filed on the following business day, which in this case was November 26, more than 10 days after our decision.

GAO’s bid protest timelines frequently serve as a trap for the unwary protester. As we have blogged about numerous times, GAO’s timeliness requires have caught more than one protester unaware, and resulted in dismissed protests. Here, however, GAO has shown that the government can expect the same unforgiving treatment when it comes to filing reconsideration requests, and that treatment can have equally disastrous consequences. It’s hard to not have some sympathy for the Marines, here.

Questions about this post? Email us or give us a call at 785-200-8919.