Link: GAO Opinion
Agency: Defense Logistics Agency
Disposition: Protest dismissed.
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GAO Digest:
Protest of award that was filed more than 10 calendar days after receipt during business hours of the agency’s email notification of award is untimely; for purposes of our timeliness rules, the mechanical receipt of an email during regular business hours constitutes notice of basis for protest.
General Counsel P.C. Highlight:
GAO initially states that the Bid Protest Regulations contain strict rules for the timely submission of protests. Under these rules, a protest based on other than alleged improprieties in a solicitation must be filed no later than 10 calendar days after the protester knew, or should have known, of the basis for protest, whichever is earlier. Moreover, the protest must set forth all information establishing the timeliness of the protest. The timeliness rules reflect the dual requirements of giving parties a fair opportunity to present their cases and resolving protests expeditiously without unduly disrupting or delaying the procurement process.
Here, the agency emailed its decision informing the protester of the award on Friday, August 21, 2009, at 2:24 p.m., Eastern time. The protester filed its protest with GAO on Thursday, September 3, more than 10 calendar days after the date it received the agency’s notification of award to another firm. The protester, which is in the Central time zone, does not contend that the agency’s email was received after the firm’s business hours on August 21, but bases the timeliness of its protest filing upon the fact that the protester’s employee (to whom the email was directed) had left for the day and did not open the email until Monday, August 24. For the purposes of the timeliness rules, however, the mechanical receipt of the email during the firm’s regular business hours on August 21 constituted notice of the agency’s award. Because the email was available to be opened during regular business hours by Golight on August 21, GAO considers the email to have been received by the protester on that date. Accordingly, GAO finds that Golight knew or should have known the basis of its protest allegations on August 21, when it received the agency’s email notification of award, and, to be timely filed, the protest was required to be filed within 10 calendar days of that date, but was not. The protest is dismissed.