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