Agency: Department of Homeland Security
Disposition: Protest Dismissed
Decided: August 25, 2017
Keywords: Timely Filing
General Counsel P.C. Highlight:
GAO deadlines for filings are strict, and the rules for extensions are clear. Failure to comply with filing deadlines and extension request rules will result in the dismissal of a protest, without consideration of the validity of the protest.
Summary of Facts Leading to Protest
In March of 2017, the Government issued two Requests for Proposals (RFPs). The Department of Homeland Security (DHS) U.S. Customs and Border Protection sought bids for border wall prototypes. The Government sought prototypes for the design and construction of both solid concrete border wall prototypes and other than solid concrete border wall prototypes. Both RFPs were issued under Federal Acquisition Regulation (FAR) subpart 36.3, which calls for a two-phase design-build approach. In phase I, the government intended to determine, based on an evaluation, whether any given offeror would be allowed to participate in the second phase of the procurement.
The RFP had amendments, and the original RFPs instructions included a requirement that offerors acknowledge any amendments by signing a Standard Form 30 (SF 30). Each SF – 30 was to accompany the offeror’s proposal. The RFP specifically instructed offerors, “failure to acknowledge all Amendments issued by the Government may result in the proposal submitted in response to the solicitation being found non-responsive by the Government.” Seven amendments were issued to the solicitation.
PennaGroup submitted timely proposals to each of the two solicitations. However, each proposal was submitted with only an SF – 30 acknowledging the seventh amendment. No acknowledgement for amendments one through six was included with either proposal. The agency determined the failure to submit seven acknowledgements rendered PennaGroup’s proposals as “non-compliant.” Consequently, they were eliminated from further competition. PennaGroup filed a protest with the General Accounting Office (GAO).
Summary of Facts Post Protest Filing
After the protest was filed, the GAO issued development letters to both parties, dated June 29, 2017, outlining the due dates for relevant actions including the following:
- Agency report and response to protest due July 26, 2017;
- PennaGroup’s written comments in response to the report due 10 calendar days after receipt of the report.
PennaGroup and the Government were advised in the letter failure to respond to the agency report within the timeframe would result in the dismissal of the protest.
The agency filed agency reports on July 26, 2017. These reports were acknowledged by PennaGroup in an email that same day. PennaGroup’s comments were due August 7, 2917 by close of business. PennaGroup did not file a response on August 7, and, as such, the GAO contacted PennaGroup to confirm this failure. PennaGroup responded “our legal team has reviewed the agency’s response and finds no new legal or factual arguments not fully set forth in length in our original Bid Protest.” This response was provided on August 8, 2017.
On August 9, 2017, DHS filed a request for dismissal in light of PennaGroup’s failure to file comments as directed. PennaGroup responded at that time they would have filed comments in a timely fashion but for technical difficulties attributable to internet service disruption due to inclement weather which prevented the filing. PennaGroup also indicated they attempted to contact GAO attorneys regarding the late filing.
The GAO notes bid protests are serious matters. Procedures are in place to assure both parties the fair opportunity to present their case. Procedures also ensure resolution in a reasonably speedy manner. Filing deadlines are designed to assist in speedy resolution. The rules mandate failure to file comments within 10 calendar days “shall” result in dismissal unless one of two conditions has been met. First, where the GAO has previously granted an extension, the response may be filed later. Second, where the GAO has established a shorter period for response, the shorter period applies. Due to PennaGroup’s failure to timely file a response or request an extension, dismissal is the appropriate result.
The GAO further notes PennaGroup requested an extension of time to file comments after the original deadline. Bid Protest Regulations, however, do not allow for post-deadline extensions. Without a request for extension prior to the original due date of close of business August 7, no extension can be granted, regardless of the reason for the failure to file in a timely fashion.