United States: For Protest Timeliness Purposes, Forwarding An Agency Email Outside Of Business Hours Constitutes Actual Notice

The Government Accountability Office (GAO) has created a potential trap regarding the beginning of the 10-day protest timeliness period when an offeror receives information from the contracting office outside of the contractor's regular business hours.

TAKEAWAYS

While there is no duty to conduct business outside of ordinary business hours, if company personnel open or forward an email after hours, the protestor is not protected by the ordinary business hours rule.

If the protester has actual notice of information received outside of normal business hours, the timeliness period for filing a protest begins on the day the information was actually received.

The Government Accountability Office (GAO) is well-known for its strict rules for the timely submission of protests. Under these rules, a protest based on other than alleged improprieties in a solicitation must be filed no later than 10 calendar days after the protester knew, or should have known, of the basis for protest. The GAO has held that a protester is on constructive notice of information received via email during normal business hours, but is not on constructive notice when an email is received outside of normal business hours. However, where a protester has actual notice of information that is received outside of normal business hours, the timeliness period for filing a protest begins on the day the information was actually received. The GAO has previously held that opening an email constitutes actual notice, even if the opened email was not read. The GAO's recent decision in Infotrend Inc. has identified an additional action that can constitute actual notice.

In Infotrend Inc., the protestor received notice from the Department of Health and Human Services, National Institutes of Health (NIH) that its proposal was not amongst the most highly rated and thus excluded from the next phase of the evaluation. Based on this information, Infotrend requested a pre-award debriefing on March 20, 2023. The NIH responded on March 28, 2023, at 5:22 pm EST, which was after Infotrend's normal business hours. The NIH emailed its debriefing to the protester's designated representative, its CEO. The CEO saw the email in his inbox that evening and did not read it. He did forward this email to three other individuals in the company, none of whom read the email until March 29, 2023. Infotrend subsequently filed a GAO protest on April 10.

The NIH moved to dismiss the protest on the basis that it was not filed timely, because it should have been filed on April 7, 10 days after March 28. Infotrend argued that the 10-day period for filing a protest did not start until March 29, because the debriefing email was received after its normal business hours on March 28. The GAO disagreed, noting that the CEO had opened the message on his phone as part of the process of forwarding it to other individuals at the company. Because the email from the agency was opened when the CEO forwarded the email, the CEO had actual notice of the debriefing information. The GAO explained that the timeliness period was not triggered by the CEO's receipt of the email. Rather, the GAO stated that forwarding the email, which opens the email, was what provided the CEO with actual notice and thus started the 10-day timeliness period.

Many contractors may not be aware that opening but not reading an email still constitutes actual notice. Now, forwarding unread emails also constitutes actual notice of the information in the email. In determining when to file a bid protest, protesters must carefully consider how and when they learned of the basis for their protest, particularly if notice of relevant information was actually (or constructively) received after regular office hours.

The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.