Taking Leave? GAO Protest Provides Cautionary Reminder on Timeliness

A recent Government Accountability Office ("GAO") bid protest decision provides a cautionary reminder on the timeliness of filing a bid protest: "[GAO's] filing deadline [] is not tolled where the recipient’s email system generated an automatic response indicating that the recipient was on leave."

The protest of SAGAM Securite Senegal, B-418583.2, March 22, 2021, 2021 CPD ¶ ___ involved the protester's challenge to the Department of State's decision to cancel a solicitation for local guard services for the U.S. Embassy in Dakar after the agency discovered a Procurement Integrity Act ("PIA") violation involving one of the protester's competitors. Shortly after the protest was filed, however, the agency requested that GAO dismiss the protest on timeliness grounds. So, what happened?

Here, the agency argued in its request for dismissal that the protest was untimely because it was filed (on December 21) more than 10 calendar days after the agency emailed (on December 2) the protester that it was cancelling the solicitation.

In response, the protester argued that its protest was timely because its "director was on leave and could not access [the December 2 email] without physically going into a SAGAM office." Thus, it did not have "constructive or actual knowledge" of the agency's cancellation decision until the director accessed the email after close of business on December 10. In addition, the protester argued that the agency was required to contact its project manager because the director's out of office ("OOO") message contained instructions to contact the project manager for urgent matters. [1]

Ultimately, in dismissing the protest as untimely, GAO determined that because the agency's email could have been opened during business hours on December 2, the email was received on that date. In other words, the fact that the director was on leave and did not access the email until after business hours on December 10 did not toll GAO's bid protest filing deadline. Further, regarding the protester's argument related to the OOO message, GAO declined to conclude that the "agency was required to respond or otherwise take action in response to receiving [the OOO message]." [2]

Takeaway

Though unfortunate, this protest provides a cautionary reminder on GAO's strict timeliness rules and that an OOO message indicating that the recipient is on leave does not toll GAO's filing deadline. As a result, contractors need to have procedures to ensure that, where an employee taking leave is an agency point of contact, communications from the agency to that employee do not go unanswered. Failure to do so could impact your ability to challenge an agency's decision regarding a procurement given GAO's strict timeliness rules.

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[1] According to the protester, the director set up an OOO message prior to taking leave, which included the contact information for its project manager. The agency represented that it never received the OOO message; however, GAO concluded that this issue was not dispositive and declined to resolve that dispute.

[2] Specifically, GAO provided the following:

• Our timeliness rules do not turn on whether an agency has sent information to a particular designated address; rather, we look to whether the relevant information was in fact received by the offeror. Hawker Beechcraft Def. Co., LLC, B-406170, Dec. 22, 2011, 2011 CPD ¶ 285 at 3. While we recognize that the protester’s automatic response provided notice that the director was out of the office, we decline to conclude here that the agency was required to respond or otherwise take action in response to receiving this notice.

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