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Posted on Monday, September 18, 2017

GAO’s Strict “Late is Late” Approach Applies to Protest Comments, Too

Many contractors are aware of FAR 52.212-1(f)(2), which states that proposals received by the Government after the time specified in the solicitation are late and will not be considered, but for a few very limited exceptions explicitly set forth in the FAR. GAO strictly enforces this “late is late” rule set forth in the FAR with respect to untimely proposal submissions.

What contractors may not realize, however, is that GAO takes a similar approach when a protestor files comments to the agency report after GAO’s deadline. Federal statute requires GAO to expeditiously resolve protests, and the bid protest regulations establish the timing of bid protest filings to avoid delay in the resolution of protests. The applicable GAO regulation, 4 C.F.R. § 23.1(i), provides that, “Comments on the agency report shall be filed with GAO within 10 days after receipt of the report, with a copy provided to the agency and other participating parties. The protest shall be dismissed unless the protester files comments within the 10-day period, except where GAO has granted an extension or has established a shorter period in accordance with § 21.10(e).” GAO reiterates this deadline in the standard letter that it provides to all parties involved in a protest, stating that “[w]ritten comments must be received in our Office within 10 calendar days of your receipt of the report – otherwise, we will dismiss your protest.”

Thus, it is not sufficient for a protestor to rely solely on the arguments made in its initial protest filing – it must also file timely comments to the agency report. This is true even where the protestor believes that the agency report does not refute the protestor’s allegations in its initial protest filing. A protestor learned this the hard way, when its protest was dismissed for failing to file timely comments to the agency report.

PennaGroup, LLC filed a bid protest alleging that the Department of Homeland Security (DHS) had unreasonably evaluated its proposals as non-compliant with the request for proposals for border wall prototypes. After receiving the bid protest, GAO issues its standard letter to the parties, which provided notice that comments must be received within 10 days of the receipt of the agency report, or else GAO would dismiss the protest.

DHS filed its agency report on July 26, 2017. Thus, PennaGroup’s comments were due by the close of business on August 7, 2017. PennaGroup did not file comments or request an extension of time by that deadline. On August 9th, the agency filed a request for dismissal, citing the protestor’s failure to file comments. For the first time, PennaGroup stated that “it would have filed its comments by the deadline but for technical difficulties (i.e., internet service disruption) resulting from inclement weather.”

GAO dismissed PennaGroup’s protests due to the protestor’s failure to file timely comments to the agency report. GAO also noted that post-deadline extensions are not permitted under the bid protest regulations, and therefore it could not provide PennaGroup with additional time to file its comments.

Berenzweig Leonard is teaming up with Red Team Consulting for a monthly newsletter featuring upcoming contracts, key protest decisions, legal updates, events, and more. This post was published in the September 2017 Monthly Insights newsletter. For more information on how to sign up for Monthly Insights, please click here.

Stephanie Wilson is a Partner at Berenzweig Leonard, LLPShe and Terry O’Connor lead the firm’s Government Contracts practice. Stephanie can be reached at swilson@berenzweiglaw.com.