GAO Refuses to Consider (or to Reconsider) Argument Raised by Offeror Who Had Not Actually Filed a Protest; RCG of North Carolina, LLC—Reconsideration, GAO B-418824.4

Request for reconsideration is denied. An attorney filed a protest on behalf of an offeror challenging the terms of a solicitation. The protest also raised additional arguments on behalf of another offeror that had not actually protested. GAO emailed the attorney explaining it would not consider the protest arguments raised by the offeror that had not filed the protest. The attorney asked GAO to reconsider its decision to not hear the arguments because he had not received GAO’s email. GAO refused to reconsider reasoning that whether the attorney actually received the email was immaterial. GAO only considers protests by parties that have actually filed and paid a protest fee. Offerors cannot piggyback on to protests they have not filed themselves.

RCG of North Carolina filed a GAO protest challenging the terms of Defense Logistics Agency solicitation. In the protest, counsel for RCG stated that he also represented another offeror, Organic Supply, and he submitted protest arguments for both RCG and Organic Supply. GAO emailed RCG’s attorney stating that if he wished to file a protest on behalf of multiple protesters raising discrete issues, then each protester had to file a separate protest and pay a separate filing fee. GAO never received a response to its email. GAO resolved the RCG protest, declining to consider allegations raised by Organic Supply.

But RCG’s counsel filed a request asking GAO to reconsider the decision not to address Organic Supply’s arguments. The attorney stated that he never received the email from GAO and questioned whether it had been sent to the proper email address.

GAO rejected the request for reconsideration. The only fact in dispute was whether GAO’s email had been received. That fact, however, was immaterial as to whether Organic Supply filed a protest in this matter and whether GAO erred in declining to consider a protest filed by Organic Supply.

Even if GAO accepted that the email it sent to the attorney had not been received, it would not warrant reversal of the decision to not consider Organic Supply’s protest. GAO’s bid protest regulations state that protests must be filed through EPDS, and it is not considered filed until (1) all the information required by the EPDS portal is completed, and (2) a protest fee has been filed. No protest was filed in accordance with those requirements by Organic Supply. The company’s name was not entered into the EPDS nor was a filing fee received by the company. GAO saw need to reconsider its decision.

RCG and Organic Supply are represented by Alan Grayson. GAO attorneys Christina Sklarew participated in the preparation of the decision.

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