GAO Bid Protest Deadlines Can be Fatal
The GAO rules on timeliness are like trapdoors. If your protest is late, the GAO is quick to dismiss it. A recent GAO case illustrates this. In Exceptional Software Strategies, Inc., B-416232 (July 12, 2018) the protestor challenged the Government's decision to exclude it from the competitive range. Generally, this type of protest must be filed within 10 days after the contractor received notice that it was excluded from the competitive range. However, there is an exception to this rule. Specifically, if a debriefing is required, the contractor can file a GAO protest within 10 days after the debriefing occurred. In the Exceptional Software case, the protestor filed a protest within 10 days after the debriefing. The GAO still found that the protest was untimely, however.
The GAO held that even though the Government gave a debriefing it was not a "required" one because the contractor did not request the debriefing within 3 business days after being notified that it was excluded from the competitive range. This is where it gets tricky. The contractor filed its request for a debriefing on the third business day at 4:59 pm. One would think that is timely. But no, the GAO cited Federal Acquisition Regulation § 33.101, which defines "filed" as “unless otherwise stated, the agency close of business is presumed to be 4:30 p.m., local time.” The GAO found that nothing in the solicitation, or elsewhere in the record, designates the business hours of NSA, and as such, the 4:30 pm deadline applied to the request for a debriefing. And because the debriefing request was late, it was not a "required" one. This meant the contractor did not have extra time to protest and had to do so within 10 days after it was excluded from the competitive range.
