Protest is dismissed as untimely. The protester objected to the cancellation of a solicitation. The agency argued that the protester had filed its protest more than 10 days after it should have known about the cancellation. The protester argued that its director was on leave without email for several weeks and thus did not know the agency emailed cancelling the solicitation. GAO considers the receipt of an email during a firm’s regular business hours to constitute constructive notice. Here, an email regarding the cancellation was available and sitting in the protester’s inbox. The fact that the protester did not open that email for several days does not toll the protest deadline.
The State Department issued a solicitation seeking local guard services at the U.S. Embassy in Dakar, Senegal. SAGAM Securite Senegal submitted a proposal in response to the solicitation. The State Department, however, cancelled the solicitation, finding there had been a violation of the Procurement Integrity Act.
The State Department emailed SAGAM’s director on December 2, 2020 to inform the company about the cancellation. The director did not acknowledge receipt of the email. The agency thus emailed the director twice more on December 7 and 10. The director finally acknowledged receipt of the emails on December 10.
On December 21, SAGAM filed a protest challenging the cancellation of the solicitation. The State Department requested that GAO dismiss the protest as untimely. The agency argued that SAGAM had notice of the cancellation on December 2 but had not filed a protest within 10 days.
SAGAM argued that it did not have actual or constructive notice of the cancellation on December 2. SAGAM contended that between November 23 and December 23, its director was on leave and could not access his work email. SAGAM had not actually learned of the cancellation until December 10, when the director saw the emails from the agency.
Under GAO’s protest regulations, a protest must be filed within 10 days of when the protester knew or should have known the basis of the protest. In determining timeliness, GAO considers the receipt of an email during a firm’s regular business hours to constitute constructive notice.
In this case, the email notifying SAGAM of the cancellation was available to be opened during regulation business hours on December 2. The email was thus received on that date. The fact that SAGAM’s director was on leave during that time, does not toll the protest filing deadline.
SAGAM argued that the agency should have conducted the individual identified as an alternate contact in the director’s automated email response. But GAO found that agencies do not have a duty to follow up with a particular individual.
SAGAM is represented by Thomas A. Coulter and Ryan J. Starks of Whiteford Taylor & Preston LLP. The agency is represented by John W. Cox of the Department of State. GAO attorneys Lois Hanshaw and Evan C. Williams participated in the preparation of the decision.