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Government Contracts Monitor

Late Proposal: GAO Takes an Equitable Rather than Technical Approach

May 6, 2014

By: Lindsay Simmons

Generally, a proposal received after the deadline for receipt may not be considered for award: “Offerors are responsible for submitting proposals, and any revisions, and modifications, so as to reach the Government office designated in the solicitation by the time specified . . . .” FAR 15.208(a). The late proposal rule alleviates confusion and ensures equal treatment of offerors. GAO recently addressed the late proposal rule in the ever-increasing context of electronic filings.  ICI Services, Inc., B-409231.2, (Comp. Gen. April 23, 2014).

In ICI Services the Navy issued an RFP that required proposal submission through the agency’s online e-portal.  The RFP provided that in the event the portal was down or inaccessible, offerors were required (1) to notify the CO via email and (2) to contact the helpdesk to register a notice that the portal was down.  Failure to take these steps would render the proposal late and unacceptable.

Under Amendment 5 to the RFP, final revised proposal revisions were due October 16th.  But the agency had difficulty posting the amendment to the e-portal so it sent out an email stating that any offeror having difficulty uploading its response should email “the documentation” to the contract specialist. ICI contacted the contract specialist, told him it could not see Amendment 5 on the e-portal, and was told to submit its final revised proposal directly to the contract specialist, which ICI did prior to the deadline.

ICI received the award and BECTech protested, claiming ICI’s proposal was late and therefore unacceptable.  The Navy took corrective action and, upon re-examination of the facts surrounding ICI’s submission agreed that ICI’s proposal was late, and rejected ICI’s final revised proposal, stating that ICI failed to follow the RFP instructions on how to proceed if the portal was down. ICI then protested, claiming its proposal as not late since was authorized to submit such proposal via email directly to the contract specialist.

Although there was a lot of disagreement regarding whether technical difficulties prevented ICI from uploading its final proposal through the portal and why ICI was permitted to submit its proposal by email GAO declined to resolve these disagreements. Instead GAO found dispositive here the fact that the Navy installation designated for receipt of proposals actually received ICI’s final revised proposal by the closing time.  GAO also noted that: (1) the RFP provided an alternative means for submitting proposals when there were difficulties with the portal; (2) several offerors and the agency had difficulties with the portal; (3) ICI received permission to submit its proposal by email and did so before the closing time; and (4) the Navy ultimately amended the RFP to allow re-submission of final revised proposals through the then-operational portal, which ICI did, and on time.  

In fashioning what appears to be an equitable resolution of this protest, GAO, surprisingly, leaves unaddressed the fact that ICI did not follow the express directions in the RFP regarding what to do in the event of technical difficulties with the portal. GAO’s position is that “the policy underlying the late proposal rule is to ensure fair and equal competition and avoid confusion. Although the Navy argues that accepting ICI’s proposal ‘without evidence that [ICI] even attempted to upload its proposal . . . would have put the other offerors at a competitive disadvantage,’ . . . the agency does not explain or show how other offerors would be disadvantaged, nor do we see any such possibility here.” 

This case is yet another example of the issues that come with submitting proposals electronically, and it likely won’t be the last.  See our previous article here.  Contractors should make every effort to follow the solicitation’s instructions and ensure that their proposals are received on time to avoid potential protests like this one.

 

Lindsay Simmons  is the attorney responsible for the content of this article

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