In my last blog post I wrote about a contractor’s unsuccessful attempt to convince the GAO that its solicitation was improperly dismissed as being untimely because the State Department didn’t recognize its automatic “out of office” email reply response. It appears that federal agencies in general are unforgiving when it comes to a contractor’s reliance on electronic communications without follow-up.
In a recent case, the SBA Office of Hearing Appeals (OHA) rejected a contractor’s petition for reconsideration upholding the OHA’s appeal of a cancellation of the contractor’s verified status as a Service-Disabled Veteran-Owned Small Businesses because it could not access a cancelation letter through a link provided by the VA.
The case is Optimum Low Voltage, LLC dba Optimum Fire & Security, SBA No. CVE-196 (2021). On May 17, 2021, Optimum Low Voltage, LLC dba Optimum Fire & Security (Optimum) filed a Petition for Reconsideration (PFR) of OHA’s decision in an earlier appeal of a Department of Veterans Affairs Center for Verification and Evaluation (CVE) decision. In that decision, OHA dismissed the appeal finding that Optimum’s petition failed to allege an error of law or fact for OHA to adjudicate.
In its PFR, Optimum argued that OHA’s finding that its owner had received a Notice of Proposed Cancellation (NOPC) letter, when he only received an allegedly broken hyperlink to the letter, constitutes an error of fact that was material to OHA’s decision to dismiss in Optimum I. Optimum contends that its owner only received the automated notification that the NOPC could be viewed by logging into the VetBiz VIP portal. In support, Optimum’s PFR included an exhibit with an email from VetBiz Vendor Information Pages stating that a NOPC has been issued and that Optimum could view the notice by logging into the account portal. Optimum provided a sworn declaration of its owner stating that when he clicked on the link, he was unable to summon up the NOPC and it was only after retaining counsel and viewing the “Archive” section that he finally viewed the NOPC. Optimum maintains it never received the NOPC because when the owner clicked the hyperlink, he did not see it. Optimum argued that it was not afforded due process, that the CVE failed to give the company adequate notice of the NOPC, and that the owner should not have been required to search for it.
On June 2, 2021, the CVE responded to Optimum’s PFR stating that the notification in the email was clear. The CVE referred to Optimum’s exhibit to the PFR which included the CVE’s March 19, 2021 email informing Optimum of the issuance of an NOPC. The email provided that Optimum may view the NOPC by logging into its account in the VetBiz VIP portal and provided the phone number for the VA Office of Small and Disadvantaged Business Utilization (OSDBU) HELP Desk if there were any questions. The CVE stated that the link in the email worked properly and if Optimum had trouble accessing the portal, one of its representatives should have called the HELP Desk, as referenced in the email. The CVE further asserted that Optimum was given sufficient notification and had ample opportunity to respond to the NOPC.
OHA found no merit in Optimum’s argument and agreed with the CVE; that the CVE’s email clearly stated that the NOPC could be viewed by logging into the account portal and if Optimum had questions, it should have reach out to the CVE HELP Desk. OHA also found that nothing in Optimum’s owner’s declaration, or any other material, stated that he attempted to seek assistance as directed in the email.
As the role of technology steadily grows, it’s increasingly important to be very careful when it comes to electronic notification. This case demonstrates that the expectation of diligence on the part of contractors in digital communications cuts across different tribunals.
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