GAO To Protesters: Check Your (Spam) Email

GAO’s filing deadlines are strict, and a protest that does not abide by them generally will be dismissed. In All Native, Inc., B-411693 et al. (Oct. 5, 2015), the GAO expanded upon this rule by dismissing a protest where the protester missed a filing deadline by a single day. In doing so, the GAO refused to extend the deadline merely because the GAO’s email setting that deadline apparently ended up in the protester’s “spam” email folder.

Ordinarily a GAO bid protest follows a common track. After the protest is filed, the agency is given 30 days to file an agency report in response. Once the protester receives the agency report, the protester then has 10 days to file its comments on the agency’s report. If a protester does not timely file its comments, its protest will be dismissed.

This regulation, however, only applies to initial protests. In the case of a supplemental protest, deadlines to file the agency report and the comments are set by the GAO and, generally, are much shorter than those allowed for initial protests.

So it was in All Native. In that case, All Native Inc. filed a GAO bid protest, arguing that the Department of the Navy erred by determining All Native’s proposal to provide support for technical data products related to naval aviation weapons systems to be technically unacceptable. After All Native filed a second supplemental protest, the GAO set tight response deadlines—the agency’s report was due on August 17, and comments were due on August 24.

All Native filed its comments one day late, on August 25.

The Navy moved to dismiss the second supplemental protest. In response, All Native sought leniency, stating that the GAO’s order establishing its August 25 deadline went to a spam e-mail folder rather than the recipient’s inbox.

The GAO was unmoved by this excuse. The GAO noted that the order was sent to the e-mail address provided by All Native’s counsel in its initial protest. The GAO wrote that “[w]here a party provides this Office with an e-mail address for the purpose of receiving communications during the course of a protest, it is the responsibility of that party to ensure its e-mail system is properly configured to receive all e-mails sent by GAO or another party to that address.” Whether the GAO’s order setting its response deadline was trapped by a spam folder was irrelevant; instead, it mattered only that the email was sent to the e-mail address identified by the protester’s counsel. Thus, the untimeliness of All Native’s comments was not excused, and its second supplemental protest was dismissed.

As All Native demonstrates, protesters must know and abide by protest filing deadlines. This obligation extends to ensuring that communications establishing those deadlines are received–including by checking the “spam” folder.

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