GAO Considers Receipt of Email During Regular Business Hours Adequate Notice

A recent GAO decision provides a costly lesson about the importance of having internal procedures to receive and respond to official e-mail communications when a company team member is unavailable. The stakes can be big–GAO recently dismissed a contractor’s protest challenging the Department of State’s decision to cancel a solicitation. The question in this matter revolved around when a party is deemed to have  received constructive notice of an agency’s cancellation of a solicitation.

The case is SAGAM Securite Senegal B-418583.2 (March 22, 2021). The matter began when the State Department issued a solicitation seeking local guard services for the U.S. Embassy in Dakar. The agency subsequently determined that the solicitation violated the Procurement Integrity Act and that the violation impacted the underlying procurement. On December 2, 2020, the Agency’s contracting officer sent an email to the director of operations for SAGAM (the Director) providing notice of its cancellation of the solicitation. The Agency received no acknowledgement of receipt of the email from the Director and sent follow-up emails on December 7th and 10th. The Director finally acknowledged receipt of the emails on December 10.

On December 21, SAGAM filed a protest challenging the cancellation of the solicitation. The Agency requested that GAO dismiss the protest as untimely because it was filed more than 10 days after December 2, the date on which the Agency notified SAGAM of cancellation of the solicitation as required under GAO’s regulations.

SAGAM argued that its protest was timely because it did not have actual or constructive notice of the Agency’s cancellation of solicitation until December 10. Between November 23 and December 23, the Director was on leave and could not access emails without physically going into a SAGAM office and, in following with the company’s standard business practices, the Director enabled an automatic email response providing notice that he was on leave with irregular access to email. The automatic response also identified an alternative contact for urgent matters. SAGM also argued that the Agency should have sent notice of the cancellation to the alternate contact person identified in the email auto-response.

The GAO dismissed SAGAM’s protest finding that the protest was untimely. The GAO’s protest regulations require that a protest must be filed within 10 days of when the protester knew or should have known the basis of the protest. The GAO considers the receipt of an email during a firm’s regular business hours to constitute constructive notice. The GAO concluded that the date upon which the timeline for a response begins is the date that the relevant information was in fact received by the offeror. In this case, the Agency’s email notifying SAGAM of the cancellation was available to be opened during regulation business hours on December 2 and was deemed to have been received on that date. Further, the fact that SAGAM’s director was on leave during that time did not toll the protest filing deadline and that the Agency had no duty to follow up with a particular individual identified in an automatic email response.

For the purposes of the GAO’s timeliness rules, the receipt of an email during a firm’s regular business hours constitutes notice and starts the countdown for a timely response. This case should serve as a reminder to make sure that, if a staff member is responsible for government communications, someone should monitor the email when they are unavailable. An out of office reply is simply not enough to toll GAO bid protest deadlines.

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