Nobody likes to be ignored, especially the federal government. In the second edition of our newest series, the Bid Protest Beat, Partner Stephanie Wilson examines a failed protest showcasing a major hurdle that can derail even the strongest bid protest at the US Government Accountability Office before it takes a single step: filing deadlines.
Hawthorne Commercial Construction–Reconsideration, B-423753.3 (Mar 02, 2026)
Following the failure of its proposal to be selected for a solicitation issued by the Department of Veterans Affairs (VA) for facilities construction services, Hawthorne Commercial Construction (Hawthorne) filed a protest, alleging that the VA had unreasonably evaluated its submission. Specifically, it challenged the VA’s rating of “limited confidence” for Hawthorne’s past performance.
Upon receiving the protest, the U.S. Government Accountability Office (GAO) issued written notices to Hawthorne and the VA, confirming receipt and advising both parties of the comments and responses they were required to file via GAO’s Electronic Protest Docket System (EPDS). According to the notice, Hawthorne was required to submit its protestor’s comments on the agency’s report through EPDS within 10 calendar days of the agency filing the report, otherwise GAO would dismiss the protest.
The VA filed a final redacted version of its agency report on January 28th, which triggered the 10-day countdown for Hawthorne. Hawthorne failed to submit its comments to the VA’s agency report by the deadline. GAO dismissed Hawthorne’s protest on February 12th, and Hawthorne filed a request for reconsideration the very next day.
In its request, Hawthorne argued that GAO should not have dismissed its protest because, even though it failed to file any comments in response to the agency report, it never affirmatively indicated its intention to abandon the protest. Instead, Hawthorne contended that GAO could have decided the protest based on its initial bid protest filing and that it was not required to submit comments repeating those same arguments.
The GAO decisively disagreed with Hawthorne’s argument, asserting that both GAO’s regulations and the individualized notices sent to the parties at the start of the protest clearly indicated that written comments must be filed or GAO would (not could) dismiss the protest. Protesters are not required to affirmatively abandon a protest; inaction and failing to meet filing deadlines will trigger dismissals on their own. Hawthorne’s request for reconsideration was denied.
What Can Government Contractors Learn From This?
There are two main takeaways from GAO’s decision here:
- Failing to meet the filing deadlines or other requirements outlined by GAO’s regulations can derail a protest before a protestor makes a single argument. Establishing a clear protest timeline and setting internal filing deadlines could help protestors ensure they meet the filing requirements from GAO in a timely manner to avoid running into a procedural wall when pursuing a protest.
- Tucked away in a footnote in GAO’s decision is a note that Hawthorne filed its protest without legal counsel, which is why the VA submitted a redacted version of its agency report. Had Hawthorne proceeded with an attorney, GAO likely would have issued a protective order that would have allowed its legal counsel to review the unredacted agency report containing source selection sensitive or other protected information. While Hawthorne itself would not have received the protected information, its attorney could have used such information to prepare more substantive comments to the agency report, rather than relying solely on the arguments in the initially filed bid protest.
Looking to stay competitive with insights on the bid protest process? Contact Stephanie Wilson at swilson@berenzweiglaw.com.