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Border Wall Protest Dismissed After Protester Fails to Timely Submit Comments

The Department of Homeland Security’s procurement for border wall prototypes is a complex, controversial procurement by any measure.  But one protest of that procurement has recently been dismissed for a simple reason: the protester failed to timely submit comments on the agency report.

Bid protests at the Government Accountability Office are notorious for their fast and rigid deadlines.  One such deadline requires that protester comments on the agency report be filed within ten calendar days of receiving the agency report — barring an extension from GAO, which must be granted before the deadline passes.  A protester cannot opt to skip comments and rest on its initial protest.  If it fails to timely submit comments, GAO will dismiss its protest.

PennaGroup, LLC protested its exclusion from the second of two phases of the border wall–prototype procurement.  The solicitations required “offerors to acknowledge any issued amendment by signing the accompanying Standard Form 30 (SF-30), and to submit the SF-30 with each offeror’s proposal.”  PennaGroup’s proposals were eliminated from the competition for both the solid concrete prototype and the other-than-solid-concrete prototype because it failed to include SF-30s acknowledging the first six of seven RFP amendments.

PennaGroup filed its protest on June 26.  DHS filed its agency report on July 26, making PennaGroup’s comments due on August 7.  GAO checked in with PennaGroup on August 8, after having heard nothing from the protester the day before.  PennaGroup responded that it had “reviewed the agency’s response and finds no new legal or factual arguments not fully set forth in length in our original Bid Protest” (alteration omitted).

DHS moved to dismiss the protest the next day.  PennaGroup responded “that it would have filed its comments by the deadline but for technical difficulties (i.e., internet service disruption) resulting from inclement weather.”  It further stated that it had tried to call GAO about its late filing, though GAO noted that its phone records “indicate[d] that the protester called” only “the day after comments were due . . . [and] did not leave messages.”

GAO thus granted DHS’s motion to dismiss, observing that PennaGroup neither submitted its comments by the deadline nor sought an extension before that deadline passed.  After noting that “[b]id protests are serious matters,” GAO explained that “[t]he filing deadlines in our Regulations are prescribed under the authority of the Competition in Contracting Act of 1984,” and “their purpose is to enable our Office to comply with the statute’s mandate that we resolve protests expeditiously.”

PennaGroup has indicated that it plans to continue its protest, presumably in the Court of Federal Claims.  Additional protests from other unsuccessful bidders are also expected after DHS makes its final award decisions.

© 2019 Covington & Burling LLP

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About this Author

Kayleigh Scalzo, Covington, Litigation attorney
Associate

Kayleigh Scalzo represents clients in a broad array of high- stakes litigation matters with the government and other private parties. She litigates bid protests at the Government Accountability Office, Court of Federal Claims, state courts, and before federal and state agencies. Ms. Scalzo also litigates Administrative Procedure Act cases and other civil matters in the U.S. Courts of Appeals and U.S. District Courts.

Kayleigh Scalzo represents clients in a broad array of high- stakes litigation matters with the government and other private parties. She litigates...

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