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Oles Morrison

Common Bid Protest Mistakes: Extension of the Due Date for Comments Does Not Toll Timeliness Requirements for Asserting Supplemental Protest Grounds

By on September 24, 2014 | Posted in Bid Protests

This is the first in a series of posts highlighting common mistakes made (by protestors) in bid protests at GAO.  Today’s post discusses a mistake related to the deadline for filing supplemental protests when an extension is granted for filing comments on the agency report.  This mistake is made by protestors far more often than it should be, and it is a serious mistake given that it usually results in the dismissal of supplemental protest grounds as untimely.

Per GAO’s bid protest regulations, a protestor must file its comments on the agency report “within 10 days after receipt of the report.”  A similar 10-day time limit exists for asserting supplemental protest grounds, which must be filed “not later than 10 days after the basis of protest is known or should have been known (whichever is earlier).”  Because supplemental protest grounds are often uncovered during a protestor’s review of the agency report, the deadline for filing comments and supplemental protests usually is the same date.  But, it is not uncommon for a protestor to request, and GAO to grant, an extension of time for the protestor to file its comments on the agency report (for example, if a dispute over a document request results in the delayed production of certain documents until a few days after the agency report, GAO will often grant a protestor’s request for an extension of the deadline for filing comments).  What protestors do not always realize (even though this point is stressed by GAO in its guide to bid protests) is that when GAO grants the protestor an extension of time for filing its comments, GAO is not granting the protestor an extension of time to file supplemental protest grounds that are based upon information in the agency report.

For example, if the agency report is filed on Day Zero, comments on the agency report and any supplemental protest grounds apparent from the agency report are both due on Day Ten.  If GAO grants the protestor an extension of time for filing comments to Day Eleven, any supplemental protest grounds apparent from the agency report remain due on Day Ten.  If the supplemental protest grounds are filed on Day Eleven, with the protestor’s comments, the supplemental protest grounds will be dismissed as untimely.

Unfortunately for protestors, too many practitioners ignore this aspect of bid protest procedure and as a result supplemental protests arguments (which are often a protestor’s strongest arguments) are commonly dismissed for this reason.  This mistake was recently highlighted by GAO in Chandler Solutions, LLC, B-409655.2, August 13, 2014, 2014 CPD ¶ 239 as the basis for dismissing the protestor’s supplemental protest arguments:   

Untimely Grounds of Protest Raised in Comments

As an initial matter, Chandler raised several new arguments in its comments on the agency report, including challenging whether FEMA’s discussions were meaningful, and arguing that FEMA’s decision to allow JDR to submit a late revised quotation improperly favored JDR. Chandler’s comments on the agency report were originally due on June 19, based on its receipt of the agency report on June 9. On the afternoon of June 19, Chandler’s counsel requested a 1-day extension to submit its comments, which our Office granted. In doing so, our Office expressly noted that the extension of the due date for filing comments could not extend the time for raising new grounds of protest. E-mail from GAO to Parties, June 19, 2014, at 4:29 p.m. (stating that an extension of the comments due date does not toll our timeliness requirements for the filing of new protest contentions, and citing Exelon Servs. Fed. Group, B-291934, Apr. 23, 2003, 2003 CPD ¶ 86 at 7 n.4). Chandler then filed its comments on June 20 (which was thus 11 days after receipt of the agency report), in which it raised these new arguments.

Chandler’s new arguments are untimely because they were filed more than 10 days after Chandler’s counsel received the agency report, on which the new grounds of protest were based. New or amended grounds of protest must be filed within 10 days of receipt of information giving rise to them, as provided in our Bid Protest Regulations.[5] 4 C.F.R. § 21.2(a)(2) (2014); Raydar & Assocs., Inc., B-401447, Sept. 1, 2009, 2009 CPD ¶ 180 at 6 n.3.

Image Courtesy of Flickr (licensed) by Alan Cleaver