In a recent decision on August 25, 2017, the GAO dismissed the protest of PennaGroup, LLC for failure to timely file comments on the agency reports.
On March 17, 2017, the Department of Homeland Security (DHS) issued an RFP for the design and construction of solid concrete border wall prototypes. The RFP instructed offerors to acknowledge any issued amendments by signing the accompanying form and advised offerors that failure to acknowledge all Amendments may result in an offeror’s proposal being found non-responsive. PennaGroup timely submitted proposals but only included acknowledge of the seventh and final amendment but did not include the acknowledgement form for amendments one through six. As a result, DHS found PennaGroup non-responsive and eliminated them from further competition. Upon exclusion from competition, PennaGroup filed a protest with the GAO.
Upon receipt of PennaGroup’s protest, the GAO prepared and distributed development letters to the parties, which stated that the due date for the agency to file its report was July 26th. The letter further advised that PennaGroup was required to submit written comments in response to the report and expressly stated: “[w]ritten comments must be received in our Office within 10 calendar days of your receipt of the report – otherwise, we will dismiss your protest.”
DHS timely filed its agency report on July 26th, which made PennaGroup’s comments due on August 7th. However, PennaGroup neither filed comments nor a request for an extension by the close of business on August 7th. The following day, the GAO asked PennaGroup to confirm whether it had filed comments and, in an email response, PennaGroup merely stated they had no arguments to add to their original bid protest. Unsurprisingly, the DHS filed a request for dismissal of the protest.
In dismissing the case, the GAO noted that that its Regulations provide that a protestor’s failure to file comments within ten calendar days shall result in dismissal of the protest unless an extension was granted. The GAO further noted that its Bid Protest Regulations do not allow for post-deadline extensions.
About the Author:
Heather Mims is an associate attorney at Centre Law & Consulting. Her practice is primarily focused on government contracts law, employment law, and litigation. Heather graduated magna cum laude from the George Mason School of Law where she was the Senior Research Editor for the Law Review and a Writing Fellow.