As we have covered on this blog, the rules governing the timing for bid protests at the Government Accountability Office (“GAO”) and Court of Federal Claims (“COFC”) can be both complex and unforgiving. But a recent COFC decision, Starside Security & Investigation, Inc. v. United States, found the Competition in Contract Act’s (“CICA”) deadline to obtain an automatic stay during a GAO protest to be subject to equitable tolling (i.e., effectively extended) — at least in the circumstances of that case.
In Starside, COFC considered (in its words) the “novel legal question” of whether the CICA deadline may be equitably tolled. Starside concerned a procurement conducted by the General Services Administration (“GSA”) for guard and transportation services in support of the U.S. Marshals Service. Below is a timeline of the key events:
- On August 15, GSA awarded the contract and sent a notification to offerors though its “IT-Solutions Shop” online ordering system. However, the protester did not receive the notification.
- On August 19, the protester contacted the person that GSA had identified as the contracting officer and asked about the status of the award. She replied that the protester would receive notice of any award, but did not mention that an award had already been made. Moreover — and unbeknownst to the protester — she was no longer the actual contracting officer for the procurement.
- According to COFC, the apparent CICA deadline was August 25: 10 days after the August 15 award.
- On September 3, the protester checked the Federal Procurement Data System and found a notification of the award. The protester reached out again to the individual listed as the contracting officer, to confirm the status of the award.
- On September 5, the actual contracting officer emailed the protester and confirmed the award had been made.
- On September 9, the protest was filed at GAO — more than two weeks after the apparent CICA deadline.
- On September 17, the protester received notification that performance of the contract would not be stayed because the protester had not filed its GAO protest within 10 days of award.
- On September 20, the protester filed a protest at COFC which challenged, in relevant part, the agency’s decision to not stay performance.
On review, COFC concluded that the CICA deadline can be equitably tolled. The court reached this conclusion based on the Supreme Court’s decision in Irwin v. Department of Veterans Affairs, 498 U.S. 89 (1990). Irwin stands for the proposition that, where there is a statutory deadline involving disputes with the federal government, there is a rebuttable presumption that the deadline is subject to equitable tolling. If a statutory deadline is subject to equitable tolling, a court considers whether the plaintiff can show that (1) it has been pursuing its rights diligently; and (2) some extraordinary circumstance stood in its way and prevented timely filing.
Applying this two-part test, COFC concluded that the protester’s CICA deadline should be equitably tolled. The court found that the protester had been pursuing its rights diligently, particularly based on its outreach to GSA. The court further found that the agency’s failure to inform the protester that there was a new contracting officer, or that an award had been made, constituted an “extraordinary circumstance” that justified the protester’s delay in filing (at least for purposes of the CICA deadline).