Error 101: Late Afternoon Technical Difficulty Leads to Untimely Protest
July 20, 2018
By: Eric Whytsell and Judith Araujo
A new system often inspires new hope, at least some of which results from the expectation of a reasonable grace period that allows some trial and error while learning the ropes. As the recent Government Accounting Office (GAO) decision in CWIS, LLC (CWIS), B-416544 (July 12, 2018) revealed, such optimism is misguided in the context of the GAO’s new electronic protest docketing system (EPDS).
The underlying protest concerned an award by the Department of Housing and Urban Development (HUD) of a contract for field management services in Nevada, Idaho, Oregon, Washington, and Alaska. HUD made the award on June 19, 2018, forty-nine days after the GAO implemented the EPDS, and posted the required justification and approval (J&A) document to fbo.gov. This document described HUD’s bases for the unusual and compelling urgency leading to its sole-source selection decision. In its protest, CWIS sought to challenge the agency’s legal and factual reasons for awarding the contract on a sole-source basis as opposed to holding at least a limited competition. Unfortunately, GAO never considered the merits because CWIS got tripped up by the new EPDS procedures and failed to timely submit its protest.
Counsel for CWIS attempted to file this protest late in the afternoon on the last possible day, June 29, 2018 (ten days after the J&A document was posted). The EPDS log showed no activity on the counsel’s account until 5:29 p.m., Eastern Time. The 5:29 attempt was unsuccessful and CWIS’s counsel received a technical failure error message. Two minutes later, at 5:31 p.m., she sent an email advising the GAO of the unsuccessful filing attempt. Then, at 5:46 p.m., CWIS’s counsel submitted the protest by e-mail to the GAO protest inbox. The protest was deemed filed on the following business day, July 2, 2018, more than ten days after HUD posted the J&A document. In other words, the protest was late.
Now that the EPDS is up and running, all new protests are required to be filed using the EPDS. 4 C.F.R.§ 21.1(b). The GAO’s EPDS-related regulations and the additional instructions on the EPDS website outline the filing process and, as relevant here, specify the timeliness of filings. Most relevant to this case, the GAO rules state that “[a] document is filed on a particular day when it is received in EPDS by 5:30 p.m., Eastern Time.” 4 C.F.R. §§ 21.0(f) and (g). In addition, if no closing time (for the submission of offers) has been established, alleged improprieties in solicitations must be challenged through the EPDS within ten days of when the alleged impropriety was known or should have been known. 4 C.F.R. § 21.2(a)(1).
The GAO explained that instructions on the EPDS website provide further guidance on filing protests and address potential technical difficulties faced by filers. Notably, pursuant to Instruction No. VII.22, if a filer is unable to file a protest during normal system operating hours due to technical failures, certain alternative procedures apply. Under such circumstances, a filer should (i) contact the GAO to ascertain the EPDS’s operating status and (ii) make its submission to the GAO’s e-mail inbox for protests (email@example.com). This instruction warns that failure to file a protest through the EPDS or GAO inbox due to technical failures during normal system operating hours, within the time periods set forth in bid protest regulations, may result in dismissal of the protest.
Citing EPDS Instruction No. III.6(b), the GAO also reminded first-time filers, who will need to create a user account and pay the filing fee, to give themselves plenty of time by filing new protests in advance of any applicable deadlines. This is good advice for even the most experienced filers. The same instruction clearly states that the time of filing will be final and that no extensions will be granted due to delays, other than as a result of a technical failure as described in Instruction No. VII.22. For these reasons, the GAO was not sympathetic to the confusion that may have resulted from CWIS’s location in the Mountain Time Zone - or any other possible explanation for the late filing.
Prospective protestors navigating the new EPDS world should take the time now to carefully review the EPDS-related regulations and instructions. Even in the relatively early days of the EPDS, failure to strictly adhere to the EPDS rules will not be excused. Technical difficulties must be reported and, if the EPDS is not available, protests must be filed through the GAO’s email within normal operating hours, i.e. by 5:30 p.m. Eastern Time. Otherwise, they will be treated as reported and submitted the following business day and the protest may therefore be late - and dismissed altogether.
Judith Araujo and Eric Whytsell are responsible for the contents of this article.
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