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Law360 (July 8, 2020, 5:04 PM EDT) -- The U.S. Government Accountability Office refused to revisit its decision to dismiss Sysco's protest over an $86.1 million Defense Logistics Agency food supply deal, saying an attorney's COVID-19-related lockdown didn't excuse his failure to meet a filing deadline.
Sysco Corp. had already been given an extension in its protest against its exclusion from the DLA deal, and it couldn't use technical and logistical problems related to a stay-at-home order to justify its attorney's failure to respond to an agency filing, the GAO said in its Monday decision.
"Sysco was required to file comments by March 26, and failed to do so," the GAO said. "Sysco's failure to submit comments by the established deadline required dismissal of its protest."
The disputed solicitation covers a four-year food distribution deal for Louisiana, Mississippi and surrounding areas, estimated at $86.1 million, according to the DLA. Sysco had protested in February, arguing its proposal for the contract was "inexplicably" rejected by the agency as late, the GAO said.
The Houston-based food services giant originally protested without using an attorney, and after it retained counsel, the GAO had extended by several days a deadline for the company to respond to a DLA agency report filed in the protest, according to the decision. But Sysco did not submit a response by the March 26 deadline as required, and its protest — the decision over it is not yet public — was dismissed as a result.
Sysco asked for reconsideration on April 6, arguing that its effort to hire an attorney and communications with the GAO showed it had no intention to abandon its protest, and that the attorney had technical and logistical difficulties related to the stay-at-home order in his state, which "should not be held against it." The case could have been decided on filings it had already made, Sysco said.
The state of residence for Sysco's attorney is not listed in the decision. The law firm biography for its listed counsel, Alexander Saksen of Gordon Rees Scully Mansukhani LLP, indicates that he works out of both Pennsylvania and Maine.
But neither Sysco's stated intent to pursue the protest nor the other filings it made could allow it to get around its failure to respond to the DLA's agency report, the GAO said.
The lockdown-related problems experienced by its attorney, including a lack of access to either his firm's network or his login credentials for the GAO's Electronic Protest Docketing System, and the "impossible" nature of drafting and filing a PDF response using a cell phone, also don't provide a basis for reconsideration, according to the GAO.
Not only had the GAO already extended the deadline to account for Sysco bringing an attorney on board, but it had also expressly denied an emailed request to further extend the filing deadline, it said.
The DLA declined to comment Wednesday, and Saksen and a representative for Sysco did not immediately respond to requests for comment Wednesday.
GAO attorneys Robert T. Wu and Peter H. Tran participated in the preparation of its decision.
Sysco is represented by Alexander Saksen of Gordon Rees Scully Mansukhani LLP.
The DLA is represented in-house by Robert Schaper and Sherine Bediako.
The case is Matter of: Sysco Corporation — Reconsideration, file number B-418466.2, before the U.S. Government Accountability Office.
--Editing by Adam LoBelia.
For a reprint of this article, please contact reprints@law360.com.
