When it comes to timely filing a bid protest, government contractors should keep one overriding principle in mind: late is late, and it probably won’t matter why the protest wasn’t timely received.
GAO recently reaffirmed this principle when it dismissed a bid protest that wasn’t timely received by its new, mandatory Electronic Protest Docketing System.
As avid SmallGovCon readers know, GAO’s regulations include strict deadlines: protests must be filed within 10 days from the date the protester knew or should have known of the protest grounds (or, if a debriefing is required and timely-requested, within 10 days from the date of the debriefing). Protests, moreover, ordinarily must be received at GAO’s office no later than 5:30 p.m. Eastern on the due date. If a protest is received after 5:30 p.m. on the 10th day, GAO will dismiss it as untimely.
Our readers also know that, earlier this year, GAO released the EPDS system. So as of May 1, 2018, almost all new GAO bid protests must be filed through EPDS. The same 5:30 p.m. cutoff applies—so if a protest is received at 5:31 p.m. on Monday, it’s deemed filed when GAO opens on Tuesday.
GAO’s decision in CWIS, Inc., B-416544 (July 12, 2018) shows these timeliness rules in practice. At 5:29 p.m. on its 10th (and final) day to protest perceived flaws in a procurement, CWIS tried to upload its protest to EPDS. It received an error message, and the filing was rejected.
At 5:31, CWIS emailed GAO to notify it of the error. Fifteen minutes later—at 5:46—CWIS then emailed its protest to the GAO inbox.
Because the protest wasn’t received until after 5:30, GAO considered it to be filed on the following business day. Notwithstanding the EPDS error and its effort to timely file the protest, CWIS’s protest was dismissed as untimely.
At first blush, this dismissal seems fairly harsh. After all, CWIS’s protest was received only 16 minutes after GAO’s deadline. But GAO’s timeliness regulations are strict—and may be overlooked only in the (rare) instance that GAO decides a protest raises significant issues affecting the procurement system. To meet the “dual requirements of giving parties a fair opportunity to present their cases and resolving protests without unduly disrupting or delaying the procurement process,” GAO dismissed CWIS’s protest.
We’ve previously written about our favorable impressions of the EPDS system. Though it’s an improvement, would-be protesters should keep in mind that EPDS’s requirements will add a few minutes to the protest-filing process. Not only must protesters be registered users on the EPDS system, but they must also provide certain solicitation-specific information to the system and upload the protest itself. Before a filing is processed, protesters must also separately pay the $350 filing fee. Though these tasks aren’t onerous, they can add several minutes to the filing process—minutes that can seem like an eternity if you’re facing a hard 5:30 p.m. deadline.
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