HDR farblog

As far as the GAO is concerned, late is late

“Punctuality is the soul of business,” said Thomas C. Haliburton, Nova Scotian businessman, judge, and best-selling author. Apparently, the Government Accountability Office (GAO) agrees.

Background

The U.S. Army issued a request for proposals (RFP) for emergency medical services at the Tobyhanna Army Depot in Pennsylvania. The RFP required offerors to submit their proposals no later than 4 p.m. EST on January 30, 2017, to the email address of the contracting officer (CO). The RFP incorporated Federal Acquisition Regulation (FAR) § 52.212-1(f)(2) that provides any proposal received after the time designated in the RFP is late and will not be considered.

Because the Army didn’t receive the proposal before 4 p.m. on January 30, the offeror’s proposal was eliminated from consideration. The offeror then protested this elimination.

Time sent v. time received

The protester’s records showed that its proposal documents were sent at 2:43 p.m., 2:57 p.m., 3:01 p.m., and 3:06 p.m. The Army’s records showed that Microsoft Office Exchange stamped these messages at 6:00 p.m., 6:05 p.m., 6:06 p.m., and 6:09 p.m. Microsoft Office Exchange was the initial point of entry into the Army’s email system.

Basis of protest

The protestor maintained that its email system indicated that the Army’s email server wasn’t available when the protestor sent the documents and that its system indicated the Army’s system had a cueing error, not caused by the protestor’s system. The protestor maintained that it had submitted a timely proposal and was guilty of no fault. The protester further asserted that it was unfair and unreasonable to reject its bid because of factors beyond its control, that the Army knew or should have known of problems with its system, and that the Army should have warned offerors to confirm receipt of offers.

Protest denied

The GAO denied the protest and pointed out the following:

  1. The offeror has the responsibility to deliver its proposal to the proper place at the proper time.
  2. Proposals received after the designated time are late and generally may not be considered.
  3. Although the rule may appear harsh, it alleviates confusion, ensures equal treatment of all offerors, and prevents one offeror from obtaining a competitive advantage over another by submitting a proposal after the deadline.

But the GAO also cited FAR § 52.212-1(f)(2)(i)(A), which governs electronic transmissions of proposals. This section provides that a late proposal may be accepted if it is—

  1. Transmitted by an electronic commerce method authorized in the RFP.
  2. Received by the Government’s email system no later than 5 p.m. one working day before the proposal is due.

Because the protestor’s proposal clearly did not meet the requirements of this section, the protestor’s proposal was still late.

Although there was a dispute over whose system was responsible for the late delivery of the proposal, the GAO didn’t address that issue because it has repeatedly found that it is the offeror’s responsibility to ensure that an electronically submitted proposal is received by—not just submitted to—the soliciting agency’s email address on time.

Lessons learned

There’s an old adage about how arriving to an appointment early is being on time, arriving on time is being late, and being late is unacceptable.

The FAR builds this adage into the procurement process when proposals are emailed. If an offeror submits a proposal early and verifies its receipt, the proposal can’t be considered late.

Put another way, when submitting proposals by email, comply with the provisions of FAR § 52.212-1(f)(2).

For more information, see Western Star Hospital Authority, Inc., B-414216.2, decided May 18, 2017.

Items on this web page are general in nature. They cannot—and should not—replace consultation with a competent legal professional. Nothing on this web page should be considered rendering legal advice.

© 2017

 

Yes, the Federal Government does have implied duty...
 

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Saturday, 24 June 2017

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