[A] number of [government contractors] encounter the same problem: They timely emailed a proposal to a government agency, but, for reasons unknown, the proposal was delivered late or was never received by the Contracting Officer (“CO”). There, the CO normally enforces the Federal Acquisition Regulation’s (“FAR”) strict “Late is Late” policy and rejects the proposal. Fortunately, in certain circumstances, it is possible to employ the Government Control Exception to salvage allegedly late proposals; however, the Government Accountability Office (“GAO”) and the Court of Federal Claims (“COFC”) interpret that exception differently. Any government contractor whose timely emailed proposal is rejected due to the “Late is Late” policy, is encouraged to work with an experienced government contracts attorney who can help them overcome the rejection.
The Government Control Exception, found both at 48 C.F.R. § 52.212-1(f) and 48 C.F.R. § 52.215-1(c)(3)(ii)(A)(1)-(3), contain identical language, but one applies to offerors of commercial items and the other applies to offerors in competitive acquisitions, respectively. Essentially, they hold that a late proposal may be considered “if it is received before award is made,” and “the Contracting Officer determines that accepting the late offer would not unduly delay the acquisition; and—
(1) If it was transmitted through an electronic commerce method authorized by the solicitation, it was received at the initial point of entry to the Government infrastructure not later than 5:00 p.m. one working day prior to the date specified for receipt of offers; or
(2) There is acceptable evidence to establish that it was received at the Government installation designated for receipt of offers and was under the Government’s control prior to the time set for receipt of offers . . .”
48 C.F.R. § 52.215–1(c)(3)(ii)(A)(1)-(2); 48 C.F.R. § 52.212-1(f)(2)(i)(A)-(B). Put simply, the Government Control Exception applies if the “late” proposal: (1) is received before award is made; (2) will not unduly delay the acquisition; (3) was received by the government’s servers; and (4) was under the government’s control prior to the deadline.
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