The protester’s attorney attempted to file a protest through GAO’s electronic protest docketing system (EPDS). But the attorney had technical difficulties logging onto to the system so he emailed the protest. GAO will only consider an emailed protest if the EPDS system is unavailable. Here, the system was not unavailable. Rather, the problem was with the attorney’s account, which had been deactivated. The protester asked GAO to consider the protest under a good cause exception. GAO refused because the protester’s attorney had failed to follow EPDS instructions. The botched filing was thus attributable to the attorney’s error, not to circumstances outside of the protester’s control.
Erimax, Inc., GAO B-421141 et al.
Background
The Department of Commerce awarded a contract for acquisition support services to Seventh Sense Consulting on September 22, 2022. Ten days later, on October 3, an attorney for Erimax, Inc., an unsuccessful offeror, attempted to file protest challenging the award through GAO’s EPDS system. But when he attempted to log in, the system stated his username did not exist. He made additional attempts and then called GAO’s general phone number. He was connected to a member of GAO’s IT team, but was still unable to connect. Consequently, the attorney emailed the protest to GAO’s protest inbox.
The next day, the attorney called the number identified in the EPDS instructions as the number to call when experiencing technical issues with EPDS. As a result of this call, the attorney learned his EPDS had been deactivated. The attorney registered for a new EPDS account at which point he was able to access his account and file the protest on October 4, 11 days after award.
GAO asked the parties to submit briefing on the timeliness of the protest.
Analysis
Technical Issues with EPDS
Erimax did not dispute that it had filed its protest a day late. Nevertheless, the company contended under GAO’s rules, a protester can email a protest if EPDS is unavailable. Here, Erimax argued, its protest was timely emailed because EDPS was unavailable due to technical issues.
GAO, however, found that Erimax had not established that EPDS was unavailable. GAO confirmed that EPDS was not experiencing technical difficulties on the day Erimax attempted to filed its protest. Moreover, Erimax’s attorney acknowledged that the problem was with his own account. Since EPDS was operating normally, Erimax could not email its protest.
Good Cause Exception
GAO’s bid protest regulations state that it may consider an untimely protest if good cause is shown. Erimax argued the good cause exception applied because its attorney’s EPDS account had been deactivated, and he had not been provided with support to reactivate his account.
GAO rejected this theory because the attorney did not follow EPDS instruction for technical issues. The EPDS instructions direct filers to call a specific number when they have problems uploading files. Erimax’s attorney did not call that number—instead, he called the GAO’s general number. The late protest was caused by the attorney’s failure to follow instructions, not by some reason beyond the protester’s control.
Supplemental Protest
Aside from its late initial protest, Erimax filed a supplemental protest, alleging that Seventh Sense had engaged in a bait and switch by switching out the higher-level personnel it proposed with lower-level personnel. While Erimax had presented affidavits stating that Seventh Sense was looking for lower-level personnel, this didn’t prove that Seventh Sense planned on replacing higher-level personnel. It merely established that Seventh Sense was looking for lower-level personnel on the contract. GAO found this argument failed to present a valid basis of protest.
Erimax is represented by Jerry A. Miles. The intervenor, Seventh Sense, is represented by Devon Hewitt. The agency is represented by Wilmary Bernal of the Department of Commerce. GAO attorneys Mary G. Curcio and John Sorrenti participated in the preparation of the decision.
--Case summary by Craig LaChance, Senior Editor