Ever tried to send documents electronically to the Government only to later learn that they were not timely received (or received at all) due to issues with the Government’s servers or websites? It happens more frequently than you may think. And it’s a significant problem if the document you are trying to email or upload to a government website is your proposal.
Some solicitations require offerors to submit their proposals electronically. But what happens if your proposal is blocked by a Government firewall or otherwise is not received in time? The Government Accountability Office (“GAO”) takes the position that the contractor bears the responsibility, while the U.S. Court of Federal Claims (“COFC”) takes a more liberal stance in certain circumstances.
The Government follows the late is late rule. If the Government receives a bid or proposal after the specified due date, it’s late and cannot be accepted by the Government unless the delay was due to the Government’s fault or there was an unanticipated event that prevents the proposal from being received. For example, the Instructions to Offerors-Competitive Acquisition clause, FAR 52.215-1(c)(3), states:
(i) Offerors are responsible for submitting proposals … so as to reach the Government office designated in the solicitation by the time specified in the solicitation….
(ii)(A) Any proposal … received at the Government office designated in the solicitation after the exact time specified for receipt of offers is “late” and will not be considered unless it is received before award is made, the Contracting Officer determines that accepting the late offer would not unduly delay the acquisition; and-
(1) If it was transmitted through an electronic commerce method authorized by the solicitation, it was received at the initial point of entry to the Government infrastructure not later than 5:00 p.m. one working day prior to the date specified for receipt of proposals; or
(2) 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 prior to the time set for receipt of offers….
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(iv) If an emergency or unanticipated event interrupts normal Government processes so that proposals cannot be received at the office designated for receipt of proposals by the exact time specified in the solicitation … the time specified for receipt of proposals will be deemed to be extended to the same time of day specified in the solicitation on the first work day on which normal government processes resume. [Emphasis added]
Offerors have unsuccessfully argued before GAO that an exception to the late is late rule should apply when the offeror is unable to transmit its proposal electronically. One of the latest examples is SigNet Technologies, Inc., B-417435 (July 3, 2019). In that case, the solicitation required offerors to submit their proposals through the Space and Naval Warfare Systems Command’s (“SPAWAR”) E-Commerce Central website. SigNet attempted to submit its proposal as a single compressed “zip” file on three different occasions shortly before the proposal deadline. Unfortunately, the system would not allow zip file attachments to be sent via personal e-mails so the zip file with the proposal was not received by the contract specialist and the Navy notified SigNet that its proposal would not be considered because it was untimely.
SigNet filed a protest with GAO arguing that there was an error with SPAWAR’s website that constituted an “unanticipated event” under FAR 52.215–1(c)(3)(iv), which should have extended the due date for the submission of its proposal. GAO disagreed and held that the protester has the burden of demonstrating that it timely delivered its proposal to the agency. In keeping with previous decisions, GAO held that the exception in FAR 52.215–1(c)(3)(iv) did not apply because there was no evidence that SigNet’s proposal was ever received at the government office designated in the solicitation or that it was under the Government’s control prior to the time set for receipt of proposals. GAO holds that electronic submissions must be received at the initial point of entry to the government infrastructure not later than 5:00 pm one working day prior to the date specified for receipt of proposals. As a result, GAO denied SigNet’s protest.
The COFC, on the other hand, has taken a more lenient interpretation of FAR 52.215–1(c)(3)(iv). The COFC generally takes the position that where an electronic proposal is received by the government server but may not yet have been be accepted or forwarded due to a technical issue, the proposal is under Government control and is not deemed “late.” See e.g., Insight Sys. Corp. v. United States, 110 Fed. Cl. 564 (2013); Watterson Constr. Co. v. United States, 98 Fed. Cl. 84 (2011). Therefore, protesters who can demonstrate that their proposals were timely sent but failed to timely arrive to the Contracting Officer due to a “mail storm” or some other technical issue, may have better chances of challenging the Government’s decision at the COFC.