GAO bid protest timeliness can be one of the most frustrating aspects of GAO bid protests.  Typically, unless the contractor receives a debriefing, any post-award protest must be filed within ten days after the contractor knew or “should have” known of the basis of protest.

The “should have known” portion of the GAO bid protest timeliness rule has tripped up contractors for years, and continues to do so.  In Golight, Inc., B-401866 (Sept. 10, 2009), the GAO held  that a disappointed offeror “should have” known of its basis for protest on the day the contractor received an email—even though the recipient didn’t open the email until several days later.

The Golight GAO bid protest involved a Defense Logistics Agency solicitation for remote-controlled spotlights.  On Friday, August 21, 2009, at 2:24 p.m., the agency emailed Golight, Inc. an award decision, stating that the contract had been awarded to a competitor.  However, the employee who received the email had already left for the day.  He did not open the email until he arrived in the office on Monday, August 24.

Golight subsequently filed a GAO protest on September 3—thirteen days after August 21, but ten days after the employee opened the email on August 24.

The GAO dismissed the bid protest as untimely.  It wrote that the GAO bid protest regulations “contain strict rules for the timely submission of protests,” designed to quickly resolve protests without unnecessarily disturbing or delaying the procurement process.  In this case, the GAO held, “the mechanical receipt of the email during the firm’s regular business hours on August 21 constituted notice of the agency’s award.”  It did not matter that the employee didn’t read the email until the following Monday, because “the email was available to be opened during regular business hours.”

The GAO’s decision in Golight is in keeping with its general habit of strictly enforcing the GAO protest timeliness requirements.  The decision hints, but does not state, that the GAO might have reached a different conclusion if the email had been sent late Friday evening or over the weekend, at a time when the employee might not be expected to read his messages.  From the decision, however, it is uncertain whether even that circumstance might serve to extend the filing period.

In an increasingly more connected world, the line between work time and personal time has become blurry, with mounting pressures for businesspeople to constantly check their email, voicemail, and data devices.  The Golight case shows that, at least during “normal” business hours, contractors are presumed to have received messages from the government—even if the message goes unread for days.