COVID-19 Lockdown No Excuse for Late Filing, GAO says

In a recent bid protest decision, GAO said being under a COVID-19 “Stay at Home Order” was no reason to miss a comments filing deadline.

According to GAO, Sysco Corp. had originally filed the protest pro se—without an attorney—but had retained counsel prior to the agency’s response to the protest. Because the agency’s response included protected information, GAO issued a protective order and extended the deadline for Sysco to file its comments on the agency response.

The deadline day was March 26, just as states and cities throughout the country were beginning to issue lockdown orders. According to the case, Sysco’s attorney emailed GAO four times to request an extension. GAO said no, noting that the attorney obviously had access to the Internet and presumably the Electronic Protest Docket System (EPDS) where protest documents are uploaded and stored. When the comments were not filed by the extended deadline, GAO dismissed the protest.

For those unfamiliar with GAO’s briefing practice, “Comments” refers to the required legal briefing a protester provides in response to a review of the Agency’s procurement documentation and protest response. The term “Comments” is somewhat deceptive considering the level of effort they require. In the context of a GAO bid protest, a “comments” filing is a complicated legal brief that is usually the protester’s last chance to convince GAO of its case.

Sysco asked GAO to reconsider its dismissal of the protest arguing in part that the filing was late because of the pandemic response. Sysco argued that due to the attorney being under a COVID-19 Stay at Home order, the attorney could not access the firm’s network and did not have a printer. It asked GAO to consider that “access to email does not necessarily equate to access to computer files or EPDS” and “drafting and filing a PDF version of any responsive comments via cell phone would have been impossible.”

GAO disagreed, saying that the COVID-19-related circumstances did not excuse the late filing: “Despite the logistical and technical difficulties endured by its attorney, none of this serves as a basis to reconsider the dismissal of Sysco’s protest. Our Office had already extended the deadline for filing comments once in order to accommodate the need to admit Sysco’s attorney to the protective order. In addition, Sysco reached our Office, via email, regarding extending this filing deadline, and the request was denied.”

GAO denied the request for reconsideration. The decision does use the word “quarantine” once, but does not indicate whether or not the attorney was actually quarantined due to symptoms or contact with a COVID-19 positive person, or was just complying with a voluntary stay-at-home order. One wonders whether that might have changed the outcome.

Regardless, this decision goes to show that while protesting in COVID-19 times may come with new and unusual challenges, GAO is not inclined to bend its rules in response. Protesters must adjust to the times.

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