Tuesday, August 28, 2012

One Hour Late - Lost Opportunity

The Comptroller General (CG) recently published a bid protest decision from last May that had been withheld due to a GAO protective order. The protest was filed by an unsuccessful bidder (Phillips) who complained that the successful bidder's proposal (McKesson) was ineligible for award because it was not submitted by the date and time set for receipt of the proposals. The Comptroller General agreed and sustained the protest.

The deadline for submission of proposals was noon on December 2, 2011. The Agency (the Veteran's Administration in this case) did not receive McKesson's proposal until an hour after that deadline (1:04 pm, to be specific). McKesson blamed the delay on email and the VA said it was due to an uncommon spelling of the contracting officer's name.

The CG held that it is an offeror's responsibility to deliver its proposal to the proper place at the proper time and late delivery generally requires rejection. Similarly, it is an offeror's responsibility, when transmitting its proposal electronically, to ensure the proposal's time delivery by transmitting the proposal sufficiently in advance of the time set for receipt of proposals to allow for time receipt by the agency. While the rule seems harsh, it alleviates confusion, ensures equal treatment of all offerors, and prevents one offeror from obtaining a competitive advantage that my accrue where an offeror is permitted to submit a proposal later than the common deadline set for all competitors.

The VA offered a couple of excuses but the CG didn't buy them, mainly because the excuses had no basis in the regulations. Ultimately, the CG ordered the VA to re-compete the solicitation and pay Phillips the cost of appealing the decision including reasonable attorney fees.

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