When Submitting Proposals Electronically, Late Might Not Always be Late at the Court of Federal Claims
July 30, 2013
The Court of Federal Claims explained in the recent bid protest Insight Systems Corp. v. United States, Nos. 12-863C and 12-883C (Fed. Cl. May 6, 2013), that it has seen “with disturbing frequency . . . bid protests that find [the Government] straining to defend agency decisions to reject, as purportedly late, proposals submitted by contractors electronically.” The Court noted that “[t]hese cases somewhat painfully illustrate the thorny issues that can arise when the outmoded provisions of the [FAR] governing delivery of electronic proposals – which date back to the last century – are applied to modern computer technology.” Once again, the Court rejected the Government’s strict defense that “late is late,” opting instead for an approach that permits flexibility in light of the mishaps that can occur with electronic submission.
This case involves a United States Agency for Internal Development (USAID) Request for Quotations under GSA’s Mission Oriented Business Integrated Systems (MOBIS) schedule contract. USAID permitted submission of proposals by email but stated that it is the vendor’s responsibility to ensure that quotes are received by the contracting officer (CO) no later than 5:00 pm November 27, 2012. Two offerors – Insight and CenterScope – emailed their proposals before the deadline. The emails reached one of USAID’s email servers, but the server was unable to transmit the email to the CO’s inbox. Although there were internal error messages transmitted between the servers, the bidders were initially unaware of the server error. USAID did not receive CenterScope’s proposal until 5:15 pm and Insight’s proposal until 5:18 pm.
USAID’s computer logs showed that both Insight and CenterScope’s emails were received by USAID’s internal servers before 5:00 pm and were delayed in reaching the CO’s email inbox due to communication errors between USAID’s internal servers. Despite this information, USAID said it would not consider either proposal because they were late. USAID cited to FAR 15.208(a), which makes it the offeror’s responsibility to ensure that a proposal reaches the designated contracting official before the deadline.
The Government argued that the FAR supports the position that “late is late” no matter the cause. The Government even went so far as to defend its position even if, as a result of the email system, the reason the email did not reach the agency employee’s inbox was because the computer was turned off. The Court chastised the Government stating, “That the timeliness of a contractor’s proposal – and whether that contractor can participate in a multi-million dollar procurement – should depend upon whether the contracting officer is standing by, or instead innocently shuts down his or her computer upon becoming ill or to go get a soda, is the first hint that something is amiss with defendant’s proposition.”
The Court went on to point out that the FAR contains exceptions to the “late is late” rule, including one stating that a “late” proposal may be considered if “there is acceptable evidence to establish that it was received at the Government installation designated for receipt of offers and was under the Government’s control at the time set for receipt of offers.” FAR 52.212-1(f)(2)(i)(B). This is commonly known as the “Government control” exception. The Court determined that nothing in the plain language of this exception makes it inapplicable to electronic submissions. Thus, the Court found that that the exception applies in this case where there was evidence that the proposals reached USAID’s internal servers before the deadline. In so holding, the Court rejected GAO’s previous finding in Sea Box, Inc., B-291056 (Comp. Gen. 2002), that the Government Control Exception does not apply to electronically submitted proposals. Perhaps now, we will see fewer instances of the Government rejecting purportedly late proposals due to electronic errors. But if not, the Court appears to be a friendlier forum for the inevitable protests.
Katie Calogero is the attorney responsible for the content of this article.
© Jackson Kelly 2013