It’s 5 o’clock on the Friday before your vacation. Your bags are packed, and your tickets booked. All that remains is getting to the airport to board your flight that evening. You’ve got a week in Aruba to look forward to. Your last task for the evening is to set an out of office message.
While that out of office message will undoubtedly make recipients jealous, your vacation won’t stop the rest of the world from conducting business as usual. This includes federal procurement deadlines—a lesson a recent GAO protester learned the hard way.
Reminding the contracting community of its strict timeliness regulations is GAO’s decision in SAGAM Securite Senegal, B-418583.2 (Comp. Gen. Mar. 22, 2021). The State Department sought security guard services for the U.S. Embassy in Dakar. SAGAM was the incumbent contractor and had submitted a bid for the follow-on work.
During its evaluation of proposals, the State Department identified violation of the Procurement Integrity Act. Specifically, a competitor improperly obtained details about SAGAM’s bid. As a result, the State Department elected to cancel the solicitation.
On December 2, the contracting officer emailed the SAGAM’s director of operations about the cancellation. The director of operations, however, was out on leave and did not see the email. SAGAM maintains that the director of operations could not view the messages outside of the office and had set an out of office message directing urgent communications to the project manager.
Having received no response, the contracting officer followed up with emails to the director of operations on December 7 and December 10. The State Department finally emailed the project manager for the first time on December 10. The project manager was then able to bring the issue to the attention of the director of operations.
On December 21, SAGAM protested the agency’s decision to cancel the solicitation, arguing that disqualification of the offending offeror would have been a better remedy. The State Department quickly moved to dismiss the protest as untimely.
The argument leveraged GAO’s bid protest regulations, which require protests be filed within ten days of when a protester knew or should have known the basis for its protest. Essentially, according to the State Department, SAGAM should have known the basis of its protest on December 2, when the email was sent, regardless of whether the director of operations viewed the correspondence.
GAO agreed with the State Department. As GAO explained, “[t]he fact that SAGAM’s director did not access his email because he was on leave does not toll the filing deadline imposed by our regulations.” As such, GAO concluded that SAGAM had constructive notice of the solicitation cancelation on December 2. Consequently, SAGAM’s December 21 protest was untimely because it was not filed within 10 days of when SAGAM should have known the basis for its protest.
SAGAM is another example of how strictly GAO polices its bid protest deadlines. Despite an out of office message explaining that the director of operations would be unavailable and providing an alternate contact, GAO nevertheless held SAGAM to have constructive notice of the State Department’s plan to cancel the solicitation.
GAO’s decision has practical implications for federal contractors. GAO has placed significant responsibility on contractor management staff to be continuously responsive. It has also made clear that out of office messages—regardless of whether they are received by the agency—will not stop a contractor from being deemed to have legal notice of an agency action.
In light of GAO’s decision, it’s no wonder Americans’ don’t take vacations.