Written by Lori Ann Lange and Sabah Petrov*
Offerors submitting bids, proposals, and quotes on government solicitations must submit their bids, proposals, and quotes by the required due date and time – and not one second later – as demonstrated by a recent Court of Federal Claims (“COFC”) decision. Criterion Sys., Inc. v. United States, No. 19-593 C, (Fed. Cl. Aug. 6, 2019). In that case, the COFC held the agency did not act arbitrarily or capriciously when it rejected an untimely filed quotation, even though that quotation was merely ninety seconds late.
In the Criterion case, the National Nuclear Security Administration (“Agency”) awarded three blanket purchase agreements under multiple Federal Supply Schedule contracts to three companies, one of which was Criterion. Two years later, the agency issued an RFQ to the three blanket purchase agreement holders for cybersecurity services. The RFQ anticipated a firm fixed-price task order with a one-year base period and four one-year option periods. While the RFQ provided that the Agency had discretion to consider materially deficient quotations, it expressly stated in bold, red and all-capitalized font, “LATE QUOTES WILL NOT BE ACCEPTED.” Subsequently, the RFQ was amended twice before the submission deadline, and each amended RFQ reiterated and emphasized that the Agency would not accept late quotations in the same conspicuous font as in the original RFQ. Under the RFQ, the offerors were required to submit their quotations to FedConnect “no later than 5:00 pm ET on November 21, 2018.”
On November 21, 2018, Criterion submitted its quote at 5:01:30 pm ET – 90 seconds after the deadline for submitting quotations. The Agency requested Criterion provide evidence that the quotation was timely submitted. However, Criterion was unable to provide sufficient evidence of timeliness as the Agency rejected Criterion’s contention that there may have been network latency issues. The Agency notified Criterion it would not consider its quotation because it was late. Criterion initially filed a timely protest with the Government Accountability Office (“GAO”), arguing that the Agency should have considered its initial submitted quote. However, the initial quote did not address the final amended quotation, which requested price quotes due to the change in the performance period. Accordingly, GAO denied Criterion’s protest.
After GAO denied its protest, Criterion filed a protest with the COFC. Criterion argued that there is no “late is late” rule under FAR Part 8 procurements and that the Agency had the discretion under its own RFQ to accept the proposal. The “late is late” rule provides that a Contracting Officer does not have the discretion to accept bids, proposals, or quotes that are not submitted on time.
The COFC rejected Criterion’s arguments and held that the Agency did not act arbitrarily or capriciously in rejecting Criterion’s quote. As the Court stated, agencies must provide offerors with a common set of selection procedures, follow those procedures, and apply the procedures equally. This includes procedures relating to when the quote has to be submitted. Accordingly, the Court held it was appropriate for the Agency to reject Criterion’s quote because it was late even though ninety seconds late may appear to be a “minimal infraction”. While this holding appears harsh to offerors, an agency’s strict adherence to the deadline places all offerors on an equal footing and avoids providing any offeror an unfair advantage.
The COFC further emphasized that offerors have the responsibility to understand and comply with all proposal submission requirements, including the requirement to timely submit the bid, proposal, or quote. Essentially, the Government places the burden to timely file bids, proposals, and quotes on the offer and, as in this case, often concludes that the failure to timely submit is within the offeror’s control. Offerors need to understand and mitigate the risk of untimely submissions. Offerors should anticipate network delays and avoid waiting until the last minute to electronically submit a bid, proposal, or quote. If it is the offeror’s first time using a government electronic system, such as FedConnect, the offeror should register early and allot the time to become familiar with the process of filing a submission. Finally, offerors should be aware of the time zone of the deadline as well as the size of the file submitted as large files often take longer to submit through such electronic filing systems or even may be rejected for being too large. Even though ninety seconds appears to be a wink in time, it is enough for the Government to reject an otherwise technically acceptable proposal.
* Sabah Petrov, J.D. (pending bar admission in the State of Maryland and acting under the supervision of District of Columbia attorneys)