Late is late: the GAO bid protest timeliness rules, and how they can be a model for boards of contract appeals

Army Lawyer, Nov, 2007 by Eugene Y. Kim

As originally enacted under the CICA, 31 U.S.C. [section] 3554(a)(1) required the Comptroller General to "issue a final decision concerning a protest within 90 working days from the date the protest is submitted...." (30) The Comptroller General could issue a final decision on a bid protest after the 90 working-day requirement had expired upon issuance of written justification for the additional time; however, this authority was for "unique circumstances only." (31) In 1988, a revision to 31 U.S.C. [section] 3554(a)(1) stripped the Comptroller General of his authority to extend the period for issuing his decision on a bid protest. (32) In 1994, the decision deadline changed from "90 working days" (33) to "125 days." (34) In 1996, 31 U.S.C. [section] 3554(a)(1) was amended again; under the revised statute, the Comptroller General was allotted 100 days (35) to render a decision on a bid protest. (36) The GAO has expressly recognized its obligation to adhere to the stringent bid protest timelines established by Congress:

   The Competition in Contract Act of 1984 (CICA), as amended,
   requires our Office to complete its review of bid protests within
   100 calendar days--a deadline consistently met--to minimize the
   disruption that protests necessarily engender. 31 U.S.C. [section]
   3554(a)(1) (2000). Congress decided that, in the event that a
   protest qualifies for a stay of performance under the terms of the
   [Competition in Contracting] Act, the 100-day timeframe strikes an
   appropriate balance between agency needs and the need to preserve
   the possibility of meaningful relief for contractors whose protests
   are vindicated upon review. (37)

B. Key GAO Definitions Regarding Timeliness

Since the bid protest process has the potential to be dominated (if not ultimately determined) by issues related to the timeliness of filings, the GAO's Bid Protest Regulations include definitions for three basic, yet crucial, terms that are used throughout its timeliness provisions: "days," "filed," and "adverse agency action." (38) The GAO's definition for these terms can be the decisive factor in resolving a timeliness issue; therefore, a summary review of these terms is appropriate. (39)

Pursuant to 4 C.F.R. [section] 21.0(e), days are defined as "calendar days." (40) The calculation of time periods during the bid protest process is subject to three conditions: (1) the day upon which a triggering event takes place is excluded; (2) if the final day for timeliness purposes is a Saturday, Sunday, or federal holiday, then the deadline is extended to the next day that is not one of the aforementioned days; and (3) if the GAO is closed on the day when a filing is due, the deadline for submission becomes the day that the GAO re-opens. (41) Under 4 C.F.R. [section] 21.0(g), a document is considered to be filed in a timely manner with the GAO if it is received on the final day of timeliness "by 5:30 p.m., eastern time." (42) In choosing a method for transmitting protest documents (e.g., regular mail, electronic mail, or facsimile), "the protester assumes the risk that the protest will not be received at [the GAO] in a timely manner." (43) An agency action (or lack thereof) is considered to be adverse under 4 C.F.R. [section] 21.0(f) if it is "prejudicial to the position taken in a protest with the agency.... " (44)