Request that GAO reconsider its decision to not dismiss a supplemental protest as untimely is denied, where the protester’s counsel was not able to download the agency report from GAO’s EPDS on the same day it was filed and informed GAO of this fact. GAO held the 10-day deadline for filing a supplemental protest should begin the day counsel was able to obtain the AR and therefore the supplemental protest was timely.
The Department of State asked GAO to reconsider its decision sustaining a supplemental protest challenging the agency’s award of a contract for mission support services to Blue Force Inc. The agency argued the supplemental protest was untimely.
US21 filed an initial and supplemental protest challenging the award of the contract. GAO dismissed the initial and supplemental protests when US21 failed to timely file its comments on the agency report. However, at the same time the protester submitted its untimely comments, it filed a second supplemental protest based on information that US21’s counsel learned from the agency report.
The agency asked GAO to dismiss this second supplemental protest as untimely, but GAO declined and later sustained the second supplemental protest.
In its request for reconsideration, the agency argued GAO erred when it concluded the second supplemental protest was timely filed and should therefore reverse its decision sustaining the protest.
US21 filed the second supplemental protest on June 14, arguing that the agency misevaluated Blue Force’s past performance. GAO concluded this allegation was based on a document that counsel for US21 first received as an exhibit to the AR on either June 4 or 6. The second supplemental protest was filed within 10 calendar days of both June 4 and 6, which was the earliest time that US21’s counsel could have learned the information about the evaluation of Blue Force’s past performance in the final award determination memorandum, making it timely.
The agency argued that US21 obtained the AR on June 1, the date the agency submitted the report to GAO. Although US21 informed GAO that it was unable to download the document due to technical issues, the agency argued the protester still had constructive notice of its contents, and therefore its grounds for protest, on that date.
GAO noted that the act of filing a document in EPDS puts all parties on notice of the filing, essentially establishing a rule of constructive notice with respect to all EPDS filings. However, GAO declined to construe this to mean that the protester knew the information contained in the AR and the exhibits. The agency argued GAO should interpret its rule strictly, with the consequence that GAO should find that US21 knew the contents of the AR even though counsel could not view it and had informed GAO of this fact. GAO declined, explaining that it will resolve doubts about timeliness in favor of the protester. GAO found US21’s counsel made a diligent effort to obtain the AR but could not do so before June 4, meaning its second supplemental protest was timely.
The government is represented by Kathleen D. Martin, Department of State. US21 Inc. is represented by Christopher R. Shiplett of Randolph Law, PLLC. The intervenor is represented by Tracie Anton of Blue Force Inc. GAO attorneys Paul N. Wengert and Tania Calhoun participated in the preparation of the decision.
