Agency: Defense Logistics Agency
Disposition: Motion for Reconsideration Denied
Keywords: Reconsideration; Timely Filing
Decided: July 13, 2017
General Counsel P.C. Highlight: The C.F.R. provides specific timelines and rules for filing. Failure to be aware of and comply with the rules can result in the dismissal of a protest. Reconsideration requires additional law or fact, not mere disagreement with previous conclusions.
Summary of Facts –
This motion for reconsideration was based on two prior protests filed by the single owner of SageCare, Inc. (SageCare) and AeroSage, LLC (AeroSage). Both protests were dismissed after a finding both firms failed to properly submit comments in response to the agency’s reports. Both firms request reconsideration, arguing they did, in fact, file proper and timely comments.
Timeline for SageCare
- March 27, 2017, SageCare files a single pre-award protest on SageCare letterhead, challenging two solicitations.
- Inadvertently, the GAO failed to acknowledge the protest, however, the due date for the Agency Report, given the filing and 4 C.F.R. 21.3(c), was April 27.
- April 17, 2017 at 5:28 pm, SageCare’s President sent an email to the GAO with the subject “SageCare Response to DLAE Agency Report” on SageCare letterhead.
- April 26, 2017 Agency files Agency Report in response to SageCare protest.
- SageCare did not respond with comments, due no later than May 8, 2017.
- May 22, 2017, the GAO dismissed the protest.
Timeline for AeroSage
- March 6, 2017 AeroSage files two protests on AeroSage letterhead, challenging two solicitations.
- March 8, 2017 the GAO consolidated the two AeroSage protests.
- Agency Report due April 5, 2017.
- Due to transmission issues, Agency Report filed April 10, 2017.
- April 17, 2017 at 5:29 pm, an email with the subject “AeroSage Response to DLAE Agency Report” was sent on SageCare letterhead, executed by SageCare’s President, containing seemingly the same information contained in the SageCare filing, emailed 1 minute prior. No information was provided indicating SageCare was authorized to represent AeroSage, in connection with the AeroSage protest.
- April 18, 2017 AeroSage requested leave to file a supplemental response.
- April 20, 2017 AeroSage sent a supplemental response to the assigned GAO attorney and others, but did not file the response with the email@example.com inbox.
GAO Response to Protests
On May 22, 2917, the GAO dismissed the SageCare protest for failing to respond to the Agency Report by the May 8, 2017 deadline. The GAO dismissed the AeroSage protest, finding the April 17, 2017 response was not made by an authorized representative of AeroSage (noting in part, the comments were made on SageCare letterhead).
Basis for Protest
AeroSage asserted the GAO had determined SageCare was a representative of AeroSage, thus, the response on SageCare letterhead was sufficient. Further, AeroSage asserted courtesy copies should be sufficient for filing. SageCare argued they believed the protests were consolidated. Further, SageCare argued reconsideration was appropriate given the GAO’s failure to acknowledge the original filing.
The request for reconsideration by both firms was denied. GAO notes no errors of law or new information was provided to warrant reconsideration.
Specifically, AeroSage provided no citation to support their assertion SageCare was authorized to respond on behalf of AeroSage. Additionally, the C.F.R. does not provide an exception to filings based on providing courtesy copies of responses to relevant parties. SageCare’s presumption of consolidation was misplaced and without evidence in the record. Finally, SageCare was on constructive notice of the Agency Report due date based on the C.F.R.
“Bid protests are serious matters, which require effective and equitable procedural standards to ensure that protests can be resolved without unduly disruption the procurement process.”
Given the facts and the law, the GAO found no basis for reconsideration.
For more information on timely filing, assistance with a potential bid protest, or general government contracts legal representation, please visit our website, our publication, the Bid Protest Weekly, or contact us at 703-556-0411.