Typo Tanks Timely Protest

The protester challenged the agency’s evaluation of proposals. The agency moved to dismiss the protest as untimely. The protester argued that its protest was timely because it emailed it to GAO before the deadline when the electronic filing system was unavailable, or alternatively, that GAO should excuse the late filing under the good cause exception. GAO disagreed and dismissed the protest as untimely, holding that when EPDS is unavailable, protesters must send filings to the specific designated email address: protests@gao.gov. The protester had sent its protest to protest@gao.gov. Sending a protest to any other GAO email address—even one differing by a single letter—does not constitute a valid filing.

Sensis Inc., GAO, B-424694.7

• • Background –  The Department of Homeland Security, United States Secret Service, issued a solicitation for national recruitment advertising campaign. After the agency notified the protester of the award to another small business on July 22, the protester attempted to file a protest on August 3—the last day of the 10-day timeliness window. However, the protester could not access GAO’s Electronic Protest Docketing System (EPDS) because a systemwide technical error prevented delivery of the temporary password needed to complete account registration. After calling GAO for guidance, the protester emailed its protest to “protest@gao.gov” (singular) rather than the correct address, “protests@gao.gov” (plural).`The protester emailed its protest to the correct address on August 4, after the 10-day deadline had passed.
  • Timeliness of the Protest – The protester argued its protest was timely because it emailed the document to GAO before the 5:30 p.m. deadline on August 3, following instructions it received by phone from a GAO representative. GAO disagreed. Under GAO’s regulations, protests must be filed through EPDS, and when EPDS is unavailable, the sole alternative is to email the filing to “protests@gao.gov” with courtesy copies to other parties. Because the protester sent its filing to a different email address, the document never arrived at the designated inbox and was therefore not filed with GAO by the deadline. Filing is not accomplished by emailing a protest to any other address at GAO, no matter how similar.
  • Good Cause Exception – The protester alternatively argued that GAO should consider the protest under the good cause exception, citing its timely attempt to file, its reliance on telephone instructions from GAO staff, and its prompt correction of the email address the following morning. GAO rejected this argument as well. The good cause exception is strictly construed and reserved for unexpected and unanticipated developments that prevent timely filing. Here, EPDS unavailability was a foreseeable circumstance—one that GAO’s written instructions explicitly address. The protester’s failure to follow the clear written EPDS instructions, rather than any unforeseen event, caused the untimely filing.

The protester is represented by Robyn Loube. The intervenor, Avvy, LLC, is represented by H. Todd Whay, Esq., of Baker, Cronogue, Tolle & Werfel, LLP. The government is represented by Nicole S. Hutchinson, Esq., and Jessica Chen, Esq., of the Department of Homeland Security. GAO attorneys Emily R. O’Hara, Esq., and Peter H. Tran, Esq., participated in the decision.