Protest challenging the award of a lease is dismissed as untimely. The protest was filed more than ten days after the notice of award. The protester alleged the protest was timely because the protester had first filed an agency protest that tolled the deadline for a GAO protest. GAO found that the protester sent an email to the agency complaining about the award. Other than expressing dissatisfaction with the award, however, that email did not request any relief and thus did not qualify as an agency protest. Moreover, GAO reasoned, even if the email had been an agency protest, the protester had filed the GAO protest more than ten days after receiving an adverse response to the purported agency protest. Thus, the GAO protest was still untimely.
The Department Agriculture issued a request for lease seeking office space in California. Silver Investments, Inc. submitted a proposal. The agency informed Silver that its proposal did not meet the requirements in the request for lease. The agency asked that Silver provide a revised proposal. Silver did not provide a revised a proposal. The agency awarded the lease another offeror, Cornerstone Community Bank.
The agency notified Silver of the award on July 29, 2020. A few days later on August 5, Silver sent an email to agency personnel, expressing concerns about the award. Silver claimed that Cornerstone’s space did not even come close to meeting the agency’s requirements. Silver avowed that it would soon take legal action that “nam[ed] the people in the fraud.” In addition to its email, Silver left several voicemails with the contracting officer, once again stating that the Cornerstone’s property did not satisfy the agency’s requirements.
The agency responded to Silver’s email and voicemails on August 7. The agency stated that Silver’s correspondence did not comply with the bid protest regulations. The agency explained that if Silver objected to the award, it could file an agency protest, a protest with GAO, or a complaint with the Court of Federal Claims. The agency stated that it would not engage in further discussions with Silver about the award.
Silver filed a GAO protest challenging the award on August 20. The agency requested dismissal of the protest as untimely, arguing that it had been filed more than 10 days after the July 29 notice of award. The protester argued that its August 5 email to the agency was an agency protest that tolled the ten-day deadline for filing a GAO protest.
GAO noted that an agency protest will be considered timely if it is filed within the time limits proscribed for filing a GAO protest. Here, Silver’s August 5 email was sent to the agency within ten days of the notice of award. The problem, GAO reasoned, is that the email did not qualify as an agency protest.
To be regarded as an agency protest, a written statement must express dissatisfaction with the agency’s actions and a request for relief. A letter than merely expresses a suggestion, hope, or an intention to file a protest in the future is generally not an agency protest. In this case, Silver expressed dissatisfaction with the award, but it did not request a ruling or any specific relief from the agency. The email only indicated an intent to take legal action in the future. Because the email was not an agency protest, it did not toll the deadline for filing a GAO protest.
Indeed, GAO continued, even if Silver’s August 5 email had been an agency protest, the GAO protest would have still been untimely. When a protester filed an agency protest, they have ten days from the date of an adverse agency decision to file a protest with GAO. Here, the agency’s response to Silver’s email—which stated that the agency would no longer discuss the award with Silver—was clearly an adverse agency decision. Silver was therefore required to file a GAO protest within 10 days of the August 7 response. But Silver did not file a protest until 13 days later.
Silver is represented by Robert Martin of Silver Investments. The agency is represented by Melissa McClellan of the Department of Agriculture. GAO attorneys Emily R. O’Hara, Young H. Cho, and Peter H. Tran participated in the preparation of the decision.
