With the ongoing rise of technology in the workplace, safe email practices are increasingly important. In particular, many in the cybersecurity community are concerned about email attachments and spam. Even so, in Information Unlimited, Inc., B-415716.40 (Oct. 4, 2019), GAO warned protesters not to delay in opening email attachments provided by the government.
Information Unlimited Inc. (IUI) submitted a bid on an RFP for the Air Force’s Small Business Enterprise Application Solutions (SBEAS) IDIQ in 2018. Generally, the SBEAS IDIQ is dedicated to procuring IT services. After preliminary review of the proposals it received, the Air Force emailed IUI on December 21, 2018. Attached to the email was a notification, informing IUI that its proposal had been removed from the competition because it was deemed technically unacceptable. The attached notice also stated that the company could request a debriefing, as required under FAR Part 15. As we have discussed before on this blog, though debriefing under FAR Part 15 is mandatory, it is not automatic, and bidders must act quickly to ensure that they receive a debriefing.
Here, the Air Force attachment informed IUI that it must request a debriefing in writing within three days of receiving the email, as explained in FAR 15.506. IUI read the notice attachment and did as required and requested its debriefing on the day it received the email. In response, the Air Force provided IUI’s debriefing as two attachments to another email less than three hours later. Unfortunately, the attachments were left unopened.
A few months later, in February 2019, IUI informed the Air Force that it hadn’t yet received the debriefing and asked when the debriefing would be. Likely perplexed, the Air Force responded that it had sent the debriefing as email attachments back in December. IUI was silent for more than six months, but on August 23, sent the Air Force another email asking for its debriefing, indicating once again that it had never been received. While the decision doesn’t make clear exactly what had happened to the “missing” (or uponed) attachments, after much back and forth, an Air Force official called IUI to explain how to open the debriefing email attachments on August 30.
On September 9, IUI filed a protest contesting the Air Force’s technical evaluation of its proposal. In particular, it argued that the protest was timely because it had not been able to access the debriefing until August 30. Unfortunately for IUI, GAO was not sympathetic to its argument.
GAO scolded IUI for failing to contact the Air Force about its failure to receive, or inability to open, the emailed debrief attachments, within a reasonable period of time. “A protester may not passively await information providing a basis for protest,” explained GAO. Instead, “a protester has an obligation to diligently pursue such information.”
Here, GAO summarized that “the protester waited over 7 months to receive its debriefing.” GAO noted that while “IUI responded promptly to the emails it did receive . . . the fact remains that a protester has an affirmative obligation to diligently pursue information providing a basis for its protest.” All in all, GAO dismissed the protest as untimely.
There are two essential takeaways from this decision:
First, it is incredibly important for potential protesters to stay on the ball when it comes to requesting, and receiving, their FAR Part 15 debriefings. Though it may feel annoying to continually pester contracting officers, its also important to confirm when you should expect your mandatory debriefing. Upon receipt, the 10-day protest timeclock starts ticking, so time is of the essence.
Second, keep checking that spam folder, especially when you are expecting emails from an agency! While protesters may encounter issues opening or receiving email attachments, this is no defense at GAO. As we have previously discussed a number of times (here, here, here, here, and here, for example), GAO won’t give you a pass if an agency email gets trapped in email No Man’s Land or goes unopened.
After opening Government emails, contact Koprince Law if you think you might have grounds to protest. We’re here to help.
Questions about this post? Email us or give us a call at 785-200-8919.