We often look at GAO bid protest timing as a complex and strictly enforced issue. Today: a reminder that all protests – including size protests filed with the Small Business Administration – carry deadlines with the potential to end your protest before it even begins.
Traditional SBA size protests have two primary deadlines:
· In order to be considered timely, size protests of negotiated procurements (including protests on partial set-asides and reserves of Multiple Award Contracts and set-asides of orders against Multiple Award Contracts) must be received by the contracting officer prior to the close of business on the 5th day (exclusive of Saturdays, Sundays, and legal holidays) after the contracting officer has notified the protestor of the identity of the prospective awardee.
· If there is an appeal of the initial size protest decision, the petition must be served and filed within 15 calendar days after the size determination was made.
The latter rule was recently put to the test when a protester sent a petition of appeal to the SBA on the 15th day – but it was not actually received until a day later. According to the Office of Hearings and Appeals decision, “late is late” and the appeal was dismissed.
The appeal at issue arose out of a small business size protest (filed by KEMRON Environmental Services Inc.) that was denied by the SBA on May 11, 2015. Despite the 15-day deadline, the appeal was not received by OHA until May 27 – a day late.
KEMRON argued that its appeal should be considered timely because it tried to deliver it to SBA headquarters on the 15th day – but that the U.S. Postal Service was unable to make the delivery on May 24 (a Sunday) or May 25 (Memorial Day). OHA disagreed.
OHA’s decision raises two important points for contractors facing size protest appeal deadlines:
· The decision makes clear delivery of the petition must be made to OHA itself – SBA HQ is not enough. Notably, in this case, timely delivery by email would have done the job!
· If the 15th day to file an appeal falls on a weekend or Federal holiday, the filing deadline will be extended to the next business day. That rule, however, did not help KEMRON because its actual deadline fell on Tuesday, May 26 (the day after the Memorial Day Holiday).
Given OHA’s strict interpretation of the rules, the best practice – if possible – is always to file a day early. The extra cushion allows for time to confirm receipt and clear up any delivery issues before they knock out your protest or appeal.