The Risks of Submitting Proposals Electronically
November 7, 2012
A recent protest at the Court of Federal Claims demonstrates the dangers of submitting a proposal close to the deadline, especially when using the Internet, and the perils of failing to read all aspects of a solicitation carefully. See Laboratory Corp. of America v. United States, No. 12-622C (Fed. Cl. Oct. 22, 2012).
The solicitation in this case stated that Offers were due at “2:00 pm CST [Central Standard Time].” An amendment to the solicitation stated that offers were to be submitted through the General Services Administration’s e-Buy website. When the protestor went to submit its proposal on the due date at 1:03 pm Central Daylight Time (CDT), the GSA website refused the submission because the website was programmed to stop accepting offers at 2:00 pm Eastern Daylight Time (EDT).
The Government argues that the e-Buy website deadline of 2:00 pm EDT became part of the solicitation when the amendment was issued, and that the website consistently stated the deadline was 2:00 pm EDT. However, the Government has no screen shots of the website during the relevant period and no method of recreating what the website looked like. According to a GSA official, the computer system automatically purges the information needed to retrieve or recreate a screen shot of the website after the deadline for proposals.
The Court noted that, if the Government is correct and the website became part of the solicitation, then GSA’s computer system is set up to automatically delete important solicitation materials necessary to decide the protest. Thus, the Court ordered the parties to submit briefs as to whether the Government should be ordered to pay spoliation sanctions. Spoliation, a common problem in civil e-discovery contexts, is the intentional, negligent, or malicious destruction of relevant evidence.
Interestingly, if the Government is correct that the e-Buy website consistently stated the deadline for submission was 2:00 pm EDT, then it seems this protest could have been avoided had the protestor checked the website prior to 57 minutes before the deadline. Presumably, had the protestor noticed the discrepancy, it could have sought clarification from the Government. This case provides yet another example of why it is always important to check all aspects of a solicitation and its amendments, including any websites used for submission, well before the stated deadline.
Stay tuned to see how the Court decides the issues in this case – both as to the sanctions and the merits of the protest.
Katie Calogero is the attorney responsible for the content of this article.
 The court noted that the RFQ used “Central Standard Time” even though daylight savings time was in effect on May 31, 2012.