In Infotrend Inc., the protestor received notice from the Department of Health and Human Services, National Institutes of Health (NIH) that its proposal was not amongst the most highly rated and thus excluded from the next phase of the evaluation. Based on this information, Infotrend requested a pre-award debriefing on March 20, 2023. The NIH responded on March 28, 2023, at 5:22 pm EST, which was after Infotrend’s normal business hours. The NIH emailed its debriefing to the protester’s designated representative, its CEO. The CEO saw the email in his inbox that evening and did not read it. He did forward this email to three other individuals in the company, none of whom read the email until March 29, 2023. Infotrend subsequently filed a GAO protest on April 10.
The NIH moved to dismiss the protest on the basis that it was not filed timely, because it should have been filed on April 7, 10 days after March 28. Infotrend argued that the 10-day period for filing a protest did not start until March 29, because the debriefing email was received after its normal business hours on March 28. The GAO disagreed, noting that the CEO had opened the message on his phone as part of the process of forwarding it to other individuals at the company. Because the email from the agency was opened when the CEO forwarded the email, the CEO had actual notice of the debriefing information. The GAO explained that the timeliness period was not triggered by the CEO’s receipt of the email. Rather, the GAO stated that forwarding the email, which opens the email, was what provided the CEO with actual notice and thus started the 10-day timeliness period.
Many contractors may not be aware that opening but not reading an email still constitutes actual notice. Now, forwarding unread emails also constitutes actual notice of the information in the email. In determining when to file a bid protest, protesters must carefully consider how and when they learned of the basis for their protest, particularly if notice of relevant information was actually (or constructively) received after regular office hours.