Aronie: The lesson of time

When it comes to procurement protests, late is late.

In the classic Gilbert and Sullivan operetta "The Pirates of Penzance," the hero, Frederic, is accidentally bound by his nursery maid as an apprentice to a pirate rather than a pilot until his 21st birthday.

Upon turning 21, Frederic approaches the pirates to declare his freedom. He finds, however, that he is the unwitting victim of a most ingenious paradox. You see, Frederic was born on Feb. 29 in a leap year. As a result, according to the pirates at least, Frederic had had a mere five birthdays — well shy of the 21 he needs to buy his freedom.

I couldn't help but think of Frederic when I read a recent decision by the Government Accountability Office regarding a bid protest filed by the Guam Shipyard.

Earlier this year, shipyard officials reviewed a Navy request for quotations for contractors interested in doing repair work to USS Frank Cable. They concluded that Navy officials improperly failed to require bidders to have a certain master repair agreement in place. Shipyard officials decided to file a protest to compel the Navy to fix the alleged solicitation defect. GAO's bid protest rules permit such a protest as long as

it is filed prior to the deadline for RFQ responses.

In this case, Navy officials had set a quotation deadline of 4:30 p.m. July 6. Shipyard officials filed their protest by fax and e-mail one day early. As it happened, July 5 was a federal holiday. In such cases, GAO's rules state that the protest is deemed filed at 8:30 a.m. ET on the next business day. Thus, Guam's protest was filed at 8:30 a.m. ET on July 6. No problem, right?

Wrong. In a twist that would have made Gilbert and Sullivan proud, quotations were opened not in Washington, D.C., but in Yokohama, Japan. Consequently, the 4:30 p.m. deadline set by the Navy for receipt of proposals was not Eastern Time, it was Far East Time. When it's 8:30 a.m. in Washington, D.C., it's 11:30 a.m. the next day in Yokohama.

Shipyard officials didn't file their protest one day early. They filed one day late.

If Gilbert and Sullivan were writing this as an opera, this would be the time when the shipyard's lawyers would break into song and dance, laughingly bemoaning their predicament. Unfortunately for the Guam Shipyard, GAO officials are rather picky about timeliness. With precious few exceptions, late is late. And sure enough, they were true to form with shipyard officials. Finding that they had filed their protest after the time set for receipt of quotations, GAO officials dismissed their protest as untimely.

I wasn't there when shipyard officials heard the ruling, but I suspect that there was little singing or dancing at the shipyard that day. It was a sad day for them, but a useful lesson for other would-be protesters.

Aronie is a partner in the government contracts group of Sheppard, Mullin, Richter & Hampton in Washington, D.C., and co-author of "Multiple Award Schedule Contracting." He can be reached at jaronie@sheppard mullin.com or (202) 218-0039.

Previous Aronie columns

"The simple made complex" [Federal Computer Week, Aug. 23, 2004]

"Contractors thorny position" [Federal Computer Week, June 28, 2004]

"Defining small by committee" [Federal Computer Week, April 19, 2004]

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