“Read Receipt” and Failure to Extend Proposal Dooms Protest

An email “read receipt” was at the center of a recent GAO decision denying a protest on the grounds that the protestor failed to extend its proposal. In Emagine IT, Inc., B-416344, the Department of Health and Human Services (“Agency”) emailed the offerors on September 18, 2018 asking them each to extend their proposals through September 30. The contracting officer received a “read receipt” indicating that the protestor had received and opened the Agency’s email. However, the protestor never responded and accordingly, the Agency excluded the protestor’s proposal from consideration. Award was made to another offeror on October 1.

In the protest filed with GAO, the protestor argued primarily that it was unreasonable for the agency to exclude its proposal from consideration because (1) the protestor had effectively communicated its intent to remain in the competition because it had filed an initial protest (on May 7, 2018) challenging the Agency’s first award decision; and (2) the protestor had extended its proposal through September 23, 2018 following the Agency’s first request to do so on August 23. GAO rejected these arguments, noting that a solicitation’s minimum acceptance period is a material requirement and an offeror’s compliance therewith is critical so that all offerors share the same business risks of leaving their proposals open for the same amount of time. GAO noted that even though the protestor extended its proposal after the Agency’s first request, and received/read the Agency’s second request to do so, it failed to respond to the second extension request. The protestor simply did not recall receiving the Agency’s email. That, GAO found, was not a persuasive explanation.

GAO further noted that regardless of whether or not the protestor received the Agency’s email, it should have known that its proposal expired September 23. Notably, the protestor took no steps to contact the contracting officer regarding the status of the procurement or to extend the acceptance period of its proposal. The protestor’s failure to take proactive measures to ensure the ongoing validity of its proposal further supported the Agency’s decision to exclude the protestor from consideration.

The second argument propounded by the protestor was that it should be allowed to revive its proposal because doing so would not compromise the integrity of the competitive bidding system. GAO also rejected this argument, holding that allowing revival would reward the protestor’s lack of reasonable diligence and would be contrary to its affirmative obligation to maintain the viability of its proposal.