What GAO Protests and a Can of Pringles have in Common

When I was a kid, Nickelodeon’s after-school line up was always interrupted by a steady parade of ads for various junk foods. In the cacophony of flashy packaging and branding, one slogan stood a cut above the rest: “Once you pop, the fun don’t stop!”

Two decades removed from my after-school television rituals, I still remember the Pringles ads. I don’t know if it was the chips themselves, or that the cardboard tube seemed to lend itself to a nearly limitless series of creative uses, or the power of a punchy slogan—something about it left an impression on me.

I still find myself thinking about the Pringles slogan, albeit for very different reasons. When it comes to bid protests, once you file with the Government Accountability Office (“GAO”), you are committed to seeing the process through to the end. In short, once you…erm…file, the fun can’t stop!

GAO Procedures and Expediency

Among GAO’s delegated responsibilities is jurisdiction to hear protests of federal procurements. The goal of GAO’s process is to provide an alternative to litigating protests before the Court of Federal Claims that is comparatively more expeditious and less expensive.

In the context of GAO, expediency is directly linked to time. Under the Competition in Contracting Act, GAO is required to issue a decision within 100 days of the protest being filed. To meet this deadline, GAO has established strict timelines for various filings.

Bid protests at GAO follow a typical cadence. The process starts with a contractor filing a protest. Thirty days later, plus or minus the occasional weekend, the agency will produce relevant documents, as well as a legal response to the protest. This is referred to as the agency report. After receiving the agency report, the protester will have 10 days to provide comments, which although sounding like a YouTube message board is actually an extensive written response to the agency’s position. GAO will then issue a decision on the merits of the protest.

With that 100-day statutory deadline hanging overhead, staying on schedule is a significant consideration for GAO. As such, there are several points during the protest process where the failure to diligently pursue will result in dismissal.

In short, this is not a “set it and quit it” system. It’s a Pringles can.

The Importance of Comments

Comments are arguably the most critical filing for a protester. It is the opportunity to explain how the agency’s documents reflect evaluation errors after the agency produces all relevant materials in the Agency Report. Compelling comments can make a GAO protest. As such, a lot of effort is usually invested in filing comprehensive comments.

For GAO, comments are also a filing on a strict timeline. Typically, Comments must be filed within 10 days of the Agency Report being served, not including the day the document was filed. That may be modified by the GAO attorney, but usually the 10-day window holds fast.

Filing comments is a requirement for GAO to continue considering the protest. GAO’s regulations explain that “[t]he protest shall be dismissed unless the protester files comments within the period of time established in [the applicable regulation].” This period of time is 10 days, unless modified. In other words, even if the protest said all you wanted to say, you still must file comments or the protest will be dismissed.

As with all things timing related, the devil is in the details. According to GAO “[a] document is filed on a particular day when it is received in [the Electronic Protest Docketing System] by 5:30 p.m., Eastern Time.” Anything received after 5:30 p.m. Eastern Time will be treated as filed the following day.

Putting GAO’s regulations together, Comments must be filed with GAO before 5:30 p.m. on the 10th day after the Agency Report was served to be timely. Failure to submit comments on time will result in a protest being dismissed.

Better Never than Late

Failure to timely submit Comments usually proves fatal for a protest. GAO’s decision in Monbo Group International—Recon., B-420387.2 (May 17, 2022), proves this point. Mombo Group protested the terms of a Defense Health Agency solicitation. After being served with the Agency Report, Monbo Group was on the clock to draft and file Comments. Unfortunately, things did not go according to plan. GAO summarized the issue as follows:

[B]ecause the agency submitted its agency report on January 3, Monbo was required to file its comments before the close of business on January 13. The protester missed that deadline, and filed later in the evening (9:11 p.m.) on January 13. Our regulations provide that a document is filed on a particular day when it is received by 5:30 p.m. Eastern Time on that day. Since Monbo’s comments were filed after 5:30 p.m., they were deemed to be filed on January 14, and our Office dismissed the protest.

Monbo Group requested GAO reconsider its decision, but its request was denied.

The dismissal in Monbo Group highlights two interrelated issues with GAO’s expediency. First, to keep the protest moving, GAO establishes strict filing deadlines. Missing a deadline often means the death of a protest. Second, lack of familiarity with GAO’s procedures can make a deadline easy to miss. Monbo Group was not represented by counsel, which may have contributed to its confusion about GAO’s filings deadlines.

Putting the Lid On

Bottom line, any contractor evaluating its GAO protest options needs to understand that it’s committing itself to multiple filings on a strict schedule. Working with an experienced bid protest attorney can help ensure filings remain on schedule. As Mombo Group demonstrates, missing a deadline can have significant ramifications for the protest.

Just use this mnemonic device, “Once you pop, the fun don’t stop!”