A contractor recently learned the hard way that if you open an email from an agency regarding a debriefing, you must read it closely and in its entirety, or you may face the consequence of missing the time to protest the agency’s action.
In the Matter of Infotrend, Inc. (Infotrend), the Department of Health and Human Services, National Institutes of Health (NIH) issued a request for proposal for the award of multiple indefinite-delivery, indefinite-quantity government-wide acquisition contracts for IT services, known as Chief Information Officer-Solutions and Partners (CIO-SP4). Specifically, NIH sought proposals to provide IT solutions and services for health, biomedical, scientific, administrative, operational, managerial, and information systems requirements. The acquisition evaluation was to be carried out in multiple phases, the first of which involved offerors submitting a self-scoring sheet with points based on the offeror’s representations concerning its experience and other capabilities. Per the solicitation, “[o]nly the highest rated offerors will advance to phase 2 of the evaluation.”
On March 20, 2023, NIH notified Infotrend that its proposal was not selected for phase 2. That same day, Infotrend requested a debriefing on its non-selection. On March 28, 2023 at 5:22 PM ET, NIH emailed the requested debriefing to Infotrend’s designated representative, the company’s CEO. The email was sent from an account named “CIO-SP4 Proposals,” with the subject line “Pre-Award Debrief Request Notification.” Infotrend filed its protest at the GAO on April 10, 2023, but NIH requested that the GAO dismiss the protest as untimely because Infotrend filed the protest more than 10 days after the CEO received the agency’s debriefing.
The GAO’s bid protest regulations contain strict rules for the timely submission of protests. A protest based on a matter other than alleged impropriety in the agency’s solicitation must be filed no later than 10 calendar days after the protester knew, or should have known, of the basis for protest, whichever is earlier. In its initial protest filing, Infotrend stated that it received the required debriefing on March 28, 2023. NIH quickly pointed out that 10 days from March 28, 2023 is April 7, 2023; therefore, Infotrend’s protest on April 10, 2023, was not timely.
In response, Infotrend changed its tune on the date that it “received” NIH’s debriefing email. Instead of March 28, 2023, Infotrend posited that because NIH sent the email after the company’s normal business hours, the agency’s debriefing should be deemed as received on March 29, 2023. And because 10 days from that date would have been on a weekend when the GAO is not open, the next business day on which Infotrend could have filed its protest was Monday, April 10, 2023. Thus, in Infotrend’s opinion, they filed the protest timely. In support of the underlying premise, Infotrend’s VP submitted a declaration stating that the company’s regular business hours conclude at 5:00 PM ET each weekday.
The GAO was not persuaded and dismissed the protest on timeliness grounds. First, the GAO noted it was Infotrend’s responsibility to establish the timeliness of its protest, including all the facts and legal theories that establish timeliness, in its initial protest filing. In short, although the GAO found that Infotrend possessed all the information necessary to assert that NIH’s debriefing was received on March 29, 2023 and, consequently, that its April 10, 2023 filing was timely, the company failed to advance that theory in its initial protest filing.
The GAO then addressed Infotrend’s argument that the debriefing should be deemed received on March 29, 2023 and not on March 28, 2023. As noted above, the company’s VP stated that Infotrend’s normal business hours conclude at 5:00 PM ET. Nevertheless, Infotrend’s CEO acknowledged that he received NIH’s email on the evening of March 28, 2023 and saw both the account from which the email was sent as well as its subject line. The CEO asserted, however, that he did not actually read the email that night but only forwarded the email to his colleagues, including the company’s VP. In particular, both the VP and CEO claimed that neither they nor the other two employees to whom the email was forwarded on the night of March 28, 2023 read the content until the following day. Critically, the CEO conceded that for him to forward the email from his phone to these other employees, he had to open the message.
In addressing this point, the GAO noted that a protestor is on constructive notice of information received during normal business hours but not when the protestor receives the information via email after regular business hours. However, the GAO has also found that “where a protester has actual notice of information received outside of normal business hours, the timeliness clock for filing a protest begins on the day the information was actually received.”
Infotrend, relying on a trio of prior GAO decisions, maintained that the mere receipt, without more, of an email containing a debriefing did not constitute knowledge, actual or otherwise, of the basis for a protest. Infotrend pointed out that the CEO received the email containing the debriefing outside of normal business hours, that he did not read the email, and that the only action taken by the CEO was forwarding the email to other individuals at the company. The GAO was not convinced and readily distinguished the cited protests.
The GAO noted that the CEO admitted to opening the email on the evening of March 28, 2023, even if just to forward it to his colleagues. In doing so, he was on notice of the email’s contents (i.e., the pre-award debriefing) because he could have simply scrolled through the email to review its substance. In other words, when the CEO opened the message, even for the limited purpose of forwarding it to his colleagues, the protestor “could not reasonably ignore its contents.” Thus, the 10 days to file a protest began on March 28 and not the following day.
It is imperative for contractors to understand the timeliness rules of the GAO, particularly when it comes to communications from the agency, including emails. As the GAO stated, there is no duty to conduct business outside normal business hours, including opening mail. But once you open the mail, including email, you are on notice of its contents and the clock to file a protest has begun to run.
