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.
The GAO’s decision in Exceptional Software Strategies, Inc., B-416232 (July 12, 2018) involved an NSA solicitation seeking to award up to six IDIQ contracts for the definition, prototyping, development, and production of visualization and presentation tools. Thirteen offerors, including Exceptional Software Strategies, Inc., submitted initial proposals.
The evaluation panel determined that ESS’s proposal was unacceptable under one of the non-price factors. On Thursday, March 15, 2018, NSA informed ESS that its proposal had been excluded from the competitive range. The letter explained that ESS had been found unacceptable, and the reasons why.
On Monday March 19, 2018, ESS sent NSA an email requesting a debriefing. The email was sent at 4:59 p.m.
NSA gave ESS a written debriefing on April 2, 2018. The debriefing “included nearly verbatim information from the competitive range notice explaining the basis for the unacceptable rating.” Four days later, on April 6, ESS filed a GAO bid protest challenging its exclusion from the competitive range.
NSA argued that the protest should be dismissed under GAO’s Bid Protest Regulations. NSA’s argument requires a little following-the-bouncing-ball among a few timeliness regulations. Here goes.
For most protests, the GAO’s Regulations say that the protest must be filed within 10 days of the date the protester knew, or should have known, the basis of protest. But there is an exception extending the time frame when a debriefing “is requested, and when requested, is required.” The FAR, in turn, says that a debriefing is required when an offeror is excluded from the competitive range if the offeror submits a written debriefing request “within 3 days after receipt of the notice of exclusion from the competition.” “Days” is defined as calendar days, except that if the last day falls on a weekend or federal holiday, the time frame is extended to the next business day.
Here, ESS received its written notice of exclusion on Thursday, March 15. The third day, March 18, fell on a weekend. So ESS had until Monday, March 19 to submit a written debriefing request triggering a “required” debriefing. Without a required debriefing, the ordinary 10-day protest clock applied, and ESS’s protest would have been due on March 26.
ESS did submit a written request on March 19, but its request was emailed at 4:59 p.m. NSA argued that the request was late, because it was submitted after 4:30 p.m. NSA said that while it gave ESS a debriefing, it did so only as a courtesy, not because a debriefing was required.
The GAO wrote that “the FAR defines ‘filed’ as the ‘complete receipt of any document by an agency before its close of business.'” The FAR further provides that “unless otherwise stated, ‘close of business is presumed to be 4:30 p.m., local time.'”
Although an agency can adopt different business hours, there was no evidence that NSA had done so. Therefore, “absent any alternate official business hours for NSA in the record, we adopt the FAR’s default 4:30 p.m., local time, close of business for the agency.” GAO concluded: “ESS had to file its request for a debriefing by 4:30 p.m. on Monday, March 19. Because it did not–ESS’s request is deemed filed on the next business day–the debriefing was not a required debriefing and did not toll our Office’s timeliness rules.”
The GAO dismissed ESS’s protest.
The Exceptional Software Strategies case is a reminder that, unless an agency provides otherwise, its official closing time under the FAR is 4:30 p.m. local time, not 5:00 p.m. or some other, later, time. When a filing is due at a federal agency on a particular day, it’s important to be aware of the official closing time–something ESS learned the hard way.
Questions about this post? Or need help with a government contracting legal issue? Email us or give us a call at 785-200-8919.