We all know that failure to submit your bid proposal on time typically results in rejection. But what if you submitted your proposal on time and the agency’s server rejects the submission without bothering to inform you? And what if the basis for rejection was an undisclosed limitation within a server on email size? Does such delay qualify as an exception to the “late is late” rule? The answer depends on which forum you ask.
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Bidder beware. Interpreting federal law can sometimes feel like solving a riddle. For example, when is an early bid late?
In the case, In re Sea Box, Inc., the Government Accountability Office (GAO) determined that a bid received by government servers eight minutes before the deadline was late because it did not arrive in the Contract Officer’s inbox until shortly after the deadline. To be clear, it did not matter when the bid was received by government servers, nor did it matter that the bid was fully in the control of the government once it was submitted.
Instead, the case turned on the interpretation of a Federal Acquisition Regulation (FAR 52.215-1) that was incorporated into the bid by reference.
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When submitting bids, contractors should always double-check their proposal submission methods, whether it be a designated portal, email, or any other method, and do so well before the deadline. GAO recently had the opportunity to examine proposal submission issues related to a US Navy procurement and did not show sympathy for the contractor who experienced proposal submission issues right at the deadline.
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In its recent decision in Criterion Systems, Inc. v. U.S., , the U.S. Court of Federal Claims (COFC) denied protester’s pre-award protest challenging the Agency’s rejection of its late submission of a revised quote in response to a solicitation amendment and request for revised quotations. In this case, the solicitation provided that “[f]ailure to follow procedures or provide any of the documents or information may be considered a material omission and may adversely affect a Vendor’s evaluation or result in elimination of the Vendor from the competition.” It also provided that “LATE QUOTES WILL NOT BE ACCEPTED.” Criterion timely submitted its initial proposal and was in the competition. The Agency issued subsequent amendments to the solicitation and sought submission of revised quotes through a government portal, FedConnect, “no later than 5:00pm ET on November 21, 2018.” Each amendment and the request for revised quotes stated that “LATE QUOTES WILL NOT BE ACCEPTED.”
Criterion “created” its revised quote on the designated electronic portal at 2:36:54 PM on November 21, 2018, but it did not “submit” it until 5:01:30 PM ET, 90 seconds after the deadline for quote submission. When asked for an explanation by the Agency, Criterion indicated it may have had “latency” issues and that this was its first time submitting documents using the portal. Criterion did not provide any evidence to justify or further explain its late submission. The Agency rejected Criterion’s quote as untimely.
Criterion brought its protest alleging that the Agency’s actions in rejecting its quote were arbitrary and capricious. The Court held that protester failed to establish that there was a “significant error” in the procurement process:
“Ninety seconds late may appear to be a minimal infraction, but deadlines are set for a reason, and an agency’s strict adherence to a deadline places all bidders on an equal footing and avoids the sorts of issues Criterion is seeking to raise here. Further, Criterion’s failure to submit a timely bid was entirely within its own control. The Agency’s refusal to deviate from the express RFQ terms is not arbitrary, capricious, or contrary to law.”
Criterion makes clear that all those who compete in procurements must comply with the express terms of the solicitation. This is an essential truth in government procurement. A bidder’s or offeror’s failure to comply with such terms can result in its loss of the opportunity to be considered for award.
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Businesses hoping to win a government contract must be familiar and comply with a host of complex timeliness rules, from the deadlines for submitting proposals and revisions, to the rules for protesting a potentially improper award to a competitor.
One small slip-up may be the difference between receiving a contract and not receiving it.
Untimeliness is a theme that frequently appears in the Government Accountability Office (GAO) protests we highlight on this blog: late proposals, tardy requests for a debriefing, untimely protests.
Some deadlines are obvious: If the solicitation says proposals are due at 5:00 p.m., don’t submit your proposal at 5:30 p.m. Others are less intuitive: When is the last possible moment you can request a required debriefing? A few are positively convoluted.
We provide a few practical tips on timeliness below, illustrated with some cautionary protest decisions. As always, if you are not absolutely sure about any deadline, ask your procurement attorney.
Keep reading this article at: http://www.mondaq.com/article.asp?articleid=742438
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
In a previous article we discussed the requirement that, if it awards a public works contract, a public entity in the State of Georgia must award the contract to the “lowest responsible and responsive bidder,” unless an exception to this requirement applies.
This article addresses what it means to be a “responsive bidder.” While responsibleness focuses on the bidder or proposer, responsiveness focuses on the bid or proposal. Specifically, responsiveness requires that a bid or proposal respond and conform to the requirements of the invitation for bids or request for proposals (the “Bid Documents”).
Any deviation from the requirements of the Bid Documents may be considered non-responsive. But public entities have the discretion to waive minor deviations from the requirements of the Bid Documents. Minor deviations are a matter of form and not of substance, or they pertain to some immaterial or inconsequential defect or variation from the exact requirement of the Bid Documents. For example, a minor deviation may occur where a bidder fails to initial a price change, or to write the solicitation number, date, and time of bid opening on its bid envelope, or to provide incidental information requested in the bid documents, such as information about its affiliates, or to include a unit price where the unit price can be calculated by dividing the line item total by the estimated quantity.
Keep reading this article at: http://www.mondaq.com/article.asp?articleid=463746
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/
With winter weather descending on much of the country, it is all the more important for contractors to ensure that their proposals are submitted with time to spare.
In a recent bid protest decision, the Court of Federal Claims held that extreme weather at an offeror’s location did not excuse the offeror’s failure to deliver a timely proposal because there was no interruption of “normal government processes” at the government location designated to receive proposals.
The Court’s decision in Global Military Marketing, Inc. v. The United States, No. 14-622C (Sept. 29, 2014), involved a DeCA solicitation for the supply of fresh pork products. The solicitation instructed that proposals deemed untimely would not be considered and that “[d]elays caused by commercial means such as airlines, express carriers such as Federal Express, United Parcel Service, etc or municipal difficulties such as black-outs, are not excusable.” Offerors were expressly instructed to “[e]nsure enough time is allowed for the proposal to arrive on time.”After a series of amendments, the proposal deadline was extended to April 30, 2014, at 3:00 p.m.
Global tendered its proposal to Federal Express on April 29, 2014. However, “extreme weather” hit Pensacola, Florida involving “intense rain of over 20 inches in 24 hours, widespread and damaging floods destroyed numerous major roads and bridges in the area.” This extreme weather caused severe “damage to infrastructure and residential and commercial buildings, and temporary closure of the Pensacola International Airport.”
Keep reading this article at: http://smallgovcon.com/u-s-court-of-federal-claims/extreme-weather-didnt-excuse-late-proposal/
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/
