Failure to Timely File Comments Leads to Dismissed Protest

When my nephew started kindergarten, his vocabulary expanded to include a new phrase: “Rules are rules, and you have to follow the rules!” For my nephew (who, if I’m being honest, can be a bit mischievous), this newfound respect for following rules was adorable.

Government contractors should commit this lesson to heart: you have to follow the rules! As one government contractor recently learned, this includes GAO’s bid protest filing rules. Where a protester doesn’t follow the rules, its protest is likely to be dismissed.

By way of background, GAO’s regulations include strict deadlines relating to protest filings: after a disappointed offeror files its protest, an agency has 30 days to file its response to the protest (called an “agency report”). The protester then must file its reply (or “comments”) to the protest within 10 days from the date it receives the agency report. The importance of complying with this deadline is unambiguous: “The protest shall be dismissed unless the protester files comments within the 10-day period, except where GAO has granted an extension or established a shorter period” for doing so.

That takes us to the case in question, PennaGroup, LLC, B-414840.2, B-414841.2 (Aug. 25, 2017). PennaGroup submitted a bid on the two-phase border wall solicitation and was excluded for not acknowledging several amendments to the solicitation (as required by the agency).

PennaGroup protested at the GAO, and the agency filed its agency report on July 26. PennaGroup’s comments were due by August 7. PennaGroup failed, however, to submit its comments by the deadline.

On August 8, GAO asked PennaGroup to confirm whether it filed comments. It responded by saying that it didn’t think comments were necessary, as its “legal team has reviewed the [agency’s] response and finds no new or factual arguments not fully set forth in length in our Bid Protest.” Essentially, because PennaGroup didn’t think there was anything worth responding to, it just didn’t respond.

The agency then moved to dismiss PennaGroup’s protest. Agreeing with the agency, GAO wrote that its bid protest deadlines are designed to facilitate the expeditious resolution of protests:

To avoid delay in the resolution of protests, our Bid Protest Regulations provide that a protester’s failure to file comments within 10 calendar days “shall” result in dismissal of the protest except where GAO has granted an extension or established a shorter period. But for this provision, a protester could idly await receipt of the report for an indefinite time, to the detriment of the protest system and our ability to resolve the protest expeditiously.

GAO dismissed the protest.

GAO’s logic makes sense—given the short deadline to resolve protests and the potential disruption to the procurement system, parties should abide by the deadlines. PennaGroup’s excuse for not doing so, however, highlights a tension in this requirement (especially from the perspective of protesters wanting to keep legal costs low): should a protester be required to comment on a protest just for the sake of doing so, even if its comments won’t necessarily add any new facts or legal justification? GAO’s decision in PennaGroup confirms that, notwithstanding this tension, protesters must abide by all applicable filing deadlines–including by filing comments within the appropriate time frame.