GAO Clarifies Timeliness Rules for Email Notice of Agency-Level Protest

You can access the internet from your couch, the skies above, and even from space. This means that you can also access your emails from each of these locations. I am sure that some of you have received emails from GAO, an agency, or a contracting officer on your phone in the last month. You may even be reading this blog while on the go. In our ever-connected world, is it possible to establish “regular business hours” and truly disconnect when it comes to emails?

As it turns out, GAO says you can.

In Tribologik Corporation, B-417532 (Aug. 2, 2019), GAO ruled that an email received outside of Tribologik’s normal business hours did not serve as actual or constructive notice required to start the clock on the deadline to file a timely protest after an agency-level protest decision.

A core component of every protest is that all filings must be timely. Tribologik was a protest of adverse agency action following Tribologik’s agency-level protest. For this type of protest, a protester must file the protest “within 10 days of actual or constructive knowledge of initial adverse agency action . . . unless the agency imposes a more stringent time for filing[.]” 4 C.F.R. § 21.2(a)(3).

There are two important rules when counting days. First, “the day from which the period begins to run is not counted.” 4 C.F.R. § 21.0(d). Second, “Days” are generally calendar days, but if “the last day of the period is a Saturday, Sunday, or Federal holiday, the period extends to the next day that is not a Saturday, Sunday, or Federal holiday.” 4 C.F.R. § 21.0(d).

As relevant here, the Navy’s “denial of Tribologik’s [agency level] protest was sent via email to the protester on April 19 and Tribologik did not file a protest with [GAO] until May 2, 13 days later.” April 19, 2019 was a Friday, so one would expect that Tribologik’s GAO protest would be due by April 29. This is because you do not count the day Tribologk received notice (April 19). Counting ten days from April 19 is April 29.

The problem for Tribologik is that it filed its protest on May 2, which was three days late. Or was it?

A key component to the protest clock starting is the “actual or constructive knowledge of initial adverse agency action.” 4 C.F.R. § 21.2(a)(3). As the Navy said, “Friday, April 19 was not a federal holiday and that the email was sent during ‘normal working hours.’” We have discussed several times where GAO has found a protest untimely where (1) GAO emails ended up in the “spam” folder or (2) an email went unopened for several days (spoiler alert–this unopened email was received, and available to be opened, during regular business hours). Based on this GAO precedent, it would be reasonable to think that Tribologik’s May 2 filing was late.

But here is where the twist comes in: April 19 was Good Friday and “per company policy, [Tribologik’s] offices were closed on Friday, April 19.” More specifically “no e-mails were downloaded for viewing until Monday, April 22, 2019 when Tribologik re-opened.” Upon review of the record, GAO agreed that Tribologik “demonstrated with sufficient evidence that its office was closed on April 19” and that “the decision was not opened or reviewed” on April 19. “Accordingly, [GAO found] that the receipt of Navy’s decision on April 19, where this date was not a regular business day for the protester and where the decision was not opened ore viewed, did not constitute actual or constructive knowledge.”

In other words – because Tribologik’s offices were closed and Tribologik personnel did not open their emails over Easter weekend, there was no actual or constructive knowledge of Navy’s decision until April 22. Therefore, the 10-day clock did not start until April 22, which means Tribologik’s May 2 protest filing was timely.

So what lessons are to be learned from Tribologik? First, this is a good refresher on how GAO calculates its rules for when a timely protest must be filed after an agency-level protest. Second, if you can prove that your offices are closed and that you did not actually open an email while your office was closed, GAO may find you did not have actual or constructive knowledge of protest grounds, thereby extending a filing deadline. (Note that the “actual or constructive knowledge” rule applied here is not the same as the “known or should have known” standard applied for bid protest deadlines under 4 C.F.R. 21.2(a)(1) and (2), so this decision likely doesn’t impact the timing rules for protests other than those coming after agency protests.)

Third, and finally, this may be another, albeit non-scientific, reason to disconnect every once in a while and go smell the roses.

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