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.
Continue reading at: JD Supra
Offerors must be alert to the possibility of technology difficulties when electronically submitting a proposal for a federal procurement as the general rule regarding proposal submissions is that “late is late.” GAO has heard countless cases in which proposal submission via email has presented complications. Proposal submission via government portals has presented similar problems for offerors.
Recently, in People, Technology and Processes, LLC, B-419385, B-419385.2, Feb. 2, 2021, GAO heard a challenge to GSA’s rejection of a proposal from consideration for an order under OASIS. The offeror, People, Technology and Processes or PTP, experienced technical difficulties while trying to submit the proposal via the GSA ASSIST online portal. Although PTP was unable to submit its proposal, no systemic issues were reported with the portal and GSA timely received six proposals from other offerors. In denying PTP’s protest, GAO’s decision provides three takeaways for other offerors using the GSA ASSIST portal.
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By 2020, most of us have gotten used to almost immediate means of digital communication. We expect emails to reach their destination at lightning-fast speeds—but this isn’t always the case. Relying on this expectation can have devastating effects, as it did for a protester in one recent GAO case.
In Spanish Solutions Language Services, LLC, B-418191 (Comp. Gen. Jan. 2, 2020), the Protester sought to submit a proposal for providing Arabic, French, and Russian translation services for a Department of Defense strategic planning seminar. Proposals were due by 11:00 am on September 23, 2019.
Continue reading at: SmallGovCon
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.
Continue reading at: SmallGovCon
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.
Read more at: Government Contracting Matters
