Missed the Deadline? GAO Says Tough Luck, Even for Pro Se Protesters
The protester asked GAO to reinstate its previously dismissed pre-award protest after it failed to file comments on the agency report by the established deadline. The protester argued it should be excused because, as a self-represented small business, it did not know it had to notify GAO when it could not access the protected agency report. GAO denied the request, holding that its regulations require dismissal when a protester fails to file comments on time, and that pro se status does not relieve a protester of its duty to diligently pursue its protest.
Sterling Readiness Rounds, LLC–Reconsideration, GAO, B-424607.2
Background – The Department of Veterans Affairs issued a sole source solicitation for annual software licensing and reporting services. The protester, a self-represented small business, challenged the sole-source award as unduly restrictive of competition. The agency filed its report in GAO’s Electronic Protest Docketing System and marked it “protected.” Because the protester was not represented by counsel, GAO did not issue a protective order, so the protester could not access protected documents. The agency never provided a redacted version. The protester did not contact GAO about the access issue until after the comments deadline. GAO dismissed the protest for failure to file comments.
Duty to Notify GAO of Access Issues – The protester argued that nothing in GAO’s acknowledgment materials instructed it on what to do if it encountered access problems, and that the duty to raise access issues before the deadline exists only in case law a small business would not know about. GAO rejected this argument, explaining that its decisions have consistently required protesters to notify GAO when they fail to receive or cannot access the agency report by the due date, and to request an extension. Late receipt or inability to access the report does not automatically extend the comments deadline.
No Special Treatment for Pro Se Protesters – The protester suggested its self-represented status should excuse its noncompliance. GAO disagreed, noting that its regulations do not distinguish between protesters represented by counsel and those proceeding pro se. A protester that chooses to proceed without counsel is not excused from complying with GAO’s regulations.
The protester is represented by Donald Death. The government is represented by Nicholas Pantages, Esq., of the Department of Veterans Affairs. GAO attorneys Sarah T. Zaffina, Esq., and Alexander O. Levine, Esq., participated in the decision.
