#GovConThoughts: GAO Protest Provides Reminder on Protest Timeliness and Agency Email Servers
[My #govconthoughts series provides a quick take on recent developments in the government contracting space.]
The bid protest decision in CC Software, Inc., B-421566, July 5, 2023, 2023 CPD ¶ __ provides two different but equally critical reminders for contractors: (1) on protest timeliness and (2) the dreaded email gateway server.
First, by now, most of the #governmentcontracting space is likely aware that GAO has strict rules for the timely submission of protests. Fail to timely submit, and your protest will be dismissed as untimely (and will not be entertained) by GAO. But what about filing too early? Well, as the decision shows, it is better to file early and be dismissed as premature, than to wait and be dismissed as untimely.
This protest dealt with the protester's challenge to a proposed sole source award and its submission of a capability statement (not a proposal) in response to the agency's notice of intent to award a sole-source. Because the agency had not rejected the protester's capability statement, GAO dismissed its protest as premature. The dismissal was still good news for the protester, as GAO said that "[i]f, after review, the agency has rejected CCS’s capability statement or proceeded with the award of the sole-source contract, CCS may, consistent with our regulations, protest the agency’s action at that time."
Second, and relatedly, the protest also involved something that #govcons are acutely aware of: timely submission of proposals. In response to the protest, the agency requested dismissal on grounds that the protester was not an interested party because its capability statement was not received on time. That is, the capability statement did not reach the designated email inbox before the deadline because a government email (EEMSG) server blocked it. GAO declined this argument.
Here, GAO found that the protester submitted its capability statement 11 days early but delivery was frustrated by the EEMSG server, which was not the protester's fault. GAO declined to treat the capability statement like a proposal because capability statements are not binding on the government (i.e., similar to a quote). In so doing, GAO found that the late proposal rule (that it be received in the designated place) was inapplicable. Yet, even if GAO treated the capability statement like a proposal, GAO stated that it would not be late because the protester submitted it 11 days early (it was stuck in the EEMSG server), thereby triggering the "one working day" exception to the rule.
Takeaway
This bid protest decision provides two important takeaways. First, when in doubt, file your bid protests early. If you are too early, GAO will dismiss it as premature but you will have another chance to submit. Second, contractors must continue to remember that government servers can (and will) block proposals, quotes, capability statements, etc. from reaching the intended recipient on time. Where an agency sets a deadline, contractors should not wait until the last minute and instead should submit well in advance of the deadline to remedy any technology issues that may impact the transmission.
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