Georgia Tech Procurement Assistance Center

On-time bid proposals, not a second too late

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Submitting your company’s bid proposal close to the deadline can be risky and have grave consequences.

The government has repeatedly rejected proposals submitted before, but received after, the deadline because of technical glitches.

In submitting a proposal for a government contract, the onus is on the contractor to ensure that its proposal is received prior to the exact time specified for receipt of proposals.  The deadlines set forth in the solicitation are strictly enforced unless: the agency receives the proposal before the contract is awarded, the contracting officer determines that accepting the late proposal would not unduly delay the acquisition, and: (i) the proposal was submitted electronically and received at “the initial point of entry to the Government infrastructure not later not later than 5:00 p.m. one working day prior to the date specified for the receipt of proposals,” (ii) the proposal was “received at the Government installation” and was “under the Government’s control” before the solicitation deadline, or (iii) it was the only proposal that the Government received.  (FAR 15.208(b)(1)(i)-(iii))

This applies not only to Defense and IT contractors, but also to health care companies competing for government contracts. (See FAR 15.208(b)(1): “Any proposal, modification, or revision, that is received at the designated Government office after the exact time specified for receipt of proposals is ‘late” and will not be considered.”; see also FAR 52.212-1(f)(2): “offer, modification, revision, or withdrawal of an offer received at the Government’s office designated in the solicitation after the exact time specified for receipt of offers is ‘late’ and will not be considered.” )

Keep reading this article at: http://www.mondaq.com/article.asp?articleid=598620

DOE rescinds $5 billion award due to contractor sale after bid submission

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GAO-GovernmentAccountabilityOffice-SealA string of recent decisions have found the U.S. Government Accountability Office (GAO) struggling with the impact of corporate transactions on pending proposals.

  • FCi Federal, Inc., B-408558.7, B-408558.8, Aug. 5, 2015, 2015 CPD ¶ 245 (overturning award where “as a result of the sale . . . the original proposal, upon which the award decision was based, no longer reflects the intended approach to performance”).
  • Wyle Labs., Inc., B-408112.2, Dec. 27, 2013, 2014 CPD ¶ 16 (overturning award where the awardee had recently engaged in a corporate reorganization).
  • IBM U.S. Federal, B-409806 et al., Aug. 15, 2014, 2014 CPD ¶ 241 (noting that a corporate reorganization did not appear “to have any significant cost or technical impact on performance of the requirements”).

These decisions have led to significant uncertainty as to what best practices should be adopted by contractors in significant transactions.

Continuing this confusion is yet another case where an apparently successful offeror has lost its contract because of a transaction.  Last week, the National Nuclear Security Administration (NNSA) rescinded the award of a nearly $5 billion contract to a Lockheed Martin company—Nevada Site Science Support and Technologies Corporation (NVS3T)—after learning that the company had been sold to Leidos Innovations Corporation after submission of the bid.

Keep reading this article at: http://www.mondaq.com/article.asp?articleid=526492

Contractor files lawsuit over DBE-related lost $77 million bridge contract

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Arkansas_State_Highway_and_Transportation_DepartmentA Texas-based contractor has filed a lawsuit against the Arkansas State Highway and Transportation Department over the department’s cancellation of a $77.6-million bridge contract for alleged failure to document disadvantaged business enterprise (DBE) involvement efforts. The department has made a claim against the contractor’s bid bond.

The contractor, Roanoke, Texas-based Johnson Bros. Corp., had in January submitted a very low bid to replace a bridge carrying highway I-40 over the White River between Little Rock and North Little Rock. The second-low bid came in about $40 million higher.

Filed in the Pulaski County circuit court of Arkansas in Little Rock on March 9, Johnson Bros. names as defendants the state’s highway commission, the commission members individually and the department’s chief engineer. The petition requests judicial review of February administrative decisions that found the contractor’s efforts to involve DBEs in the project insufficient, reject the bid, make a claim under the bid bond and ban the contractor from rebidding on the project.

The petition also claims that the highway commission took no action on a petition to review the department’s decision and request for injunctive relief.

State officials had conditionally awarded the contract to Johnson Bros. Corp. based on the company’s low bid.

Keep reading this article at: http://www.enr.com/articles/39253-arkansas-cites-dbe-rule-and-halts-bridge-contract

Bidders await word from SOCOM after court ruling

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SOCOMTampa defense contractors are awaiting a response from U.S. Special Operations Command (SOCOM) to a federal court ruling last week that the command overreached by calling for a do-over on $900 million worth of awards on a problem-plagued contracting program.

At stake is millions of dollars in government contracts and a significant investment of time and money by contractors. But often, progress is tied up in a system where a protest can extend an existing contract or lead to a new one.

As government contracting dollars dry up, protests have increased, according to a study last year by the nonpartisan Congressional Research Service.

The latest example came last week from a Washington, D.C., court that few outside government contracting have heard about.

Court of Federal Claims Judge Nancy Firestone ruled that SOCOM took action “not reasonable under the circumstances” when it decided to redo an award that allowed four companies to bid on up to $900 million in services over a five-year period.

Keep reading this article at: http://www.tbo.com/list/military-news/bidders-await-word-from-socom-after-court-ruling-20160227/

Proposal in government mail room was still ‘late’

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Even if a proposal arrives in a government mailroom by the submittal deadline, the proposal is nevertheless “late” if it does not reach the location specified in the solicitation by the designated time.

In a recent bid protest decision, the GAO reaffirmed long-standing precedent that “receipt of a bid or proposal at a mailroom or other receiving area does not constitute receipt at the location specified in the RFP, provided the agency has established reasonable procedures to ensure that mailed bids or proposals are routed from the mailroom to the location designated in a solicitation for receipt.”

In Brian X. Scott, B-410195 (Nov. 7, 2014), the Military Sealift Command issued a request for proposals for a series of voyages to perform reapply deliveries to islands off the coast of California. The RFP stated that proposals were to be delivered to MSC offices at the Washington Navy Yard by 2:00 p.m. on July 30.

The RFP advised offerors that access to the Navy Yard was restricted.  Accordingly,  “Offerors, couriers, and other delivery services may encounter unpredictable and lengthy delays or denied access when attempting to enter that facility. Similarly, mailed and emailed proposals may encounter unpredictable and lengthy routing delays. In all cases, offerors are responsible for the risks associated with the chosen delivery method and for ensuring that the Government receives the complete proposal at the appropriate designated location prior to the due date and time for proposal submission.”

Keep reading this article at: http://smallgovcon.com/gaobidprotests/proposal-in-government-mailroom-was-still-late/

 

GAO: Emailed proposal in agency’s possession was not “late”

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In a victory for common sense, the GAO has held that a proposal that was in the agency’s possession before the due date was not “late,” even though the offeror emailed the proposal to the agency instead of submitting it through an online portal.

The agency’s attempt to reject the proposal was particularly egregious because the agency told the protester that the proposal could be submitted by email — then rejected the proposal when the protester did just that.

The GAO’s decision in ICI Services, Inc., B-409231.2 (Apr. 23, 2014) involved a Navy task order solicitation for engineering support services.  The solicitation stated that offerors were required to submit their proposals through the Navy’s online Seaport-e portal.  However, the solicitation stated that if the Seaport-e portal was inaccessible, offerors were to immediately notify the agency.

After receipt of initial proposals, the agency opened discussions and asked offerors to submit final proposal revisions.  Because the Navy was having difficulty with its own Seaport-e portal, its email notice to offerors stated “[i]f you have any difficulties uploading your response in the Seaport-e portal, please email me the documentation.”

Keep reading this article at: http://smallgovcon.com/gaobidprotests/gao-emailed-proposal-in-agencys-possession-was-not-late/

 

E-mail snafu no reason to disqualify company’s bid

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Rain nor snow nor flooded e-mail servers will stop the delivery of a contract proposal.

The U.S. Court of Federal Claims has ruled that the Army Corps of Engineers should not have disqualified a bid because it arrived via e-mail four minutes after the noon deadline.

The proposal from Watterson Construction Co. was held up because the Corps e-mail servers were in the midst of a “mail storm,” causing unusual delays in distributing e-mails.

Judge Susan Braden ruled that the company’s bid was not late because it “was both reached and received by the government’s e-mail servers before the due date.”

According to the decision, a mail storm is an “e-mail sent to a large number of users, a sufficient number of whom reply to all, flooding an e-mail system and disabling it.”

“Watterson’s proposal was improperly eliminated from the competition, as the disturbance in the Army Corps’ servers entitled Watterson to a one-day time extension,” Braden wrote in her ruling.

Braden wrote that today’s e-mails are sent instantaneously in the ordinary course of business, and a problem such as a mail storm is abnormal. The judge concluded then that the mail storm was an “emergency or unanticipated event.” As a result of the emergency, the Federal Acquisition Regulation extends the deadline to bidders for 24 hours.

“It is true that at the time proposals were due, the Army Corps Office was open for business and proposals could have been delivered by hand,” Braden wrote. “The court, however, does not construe the phrase ‘proposals cannot be received’ to mean that it must be impossible for the government to receive proposals, before the ‘emergency’ or ‘unanticipated event’ exception applies.”

— About the Author: Matthew Weigelt is acquisition editor for Federal Computer Week – published Mar. 31, 2011 at http://washingtontechnology.com/articles/2011/03/31/court-ruling-mail-storm-bid-proposal-deadline.aspx?s=wtdaily_010411 

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