A Case Where Late Proposals Were Okay

We've written from time to time of the importance, when responding to a Government solicitation, of ensuring bids are received on time. FAR 15.208 makes it clear that it is the offeror's responsibility to deliver its proposal to the proper place at the proper time. Late delivery generally requires rejection of the proposal.

Looking through GAO archives, there was a case where a proposal was rejected because it was one hour late and another rejected because FedEx delivered it to the wrong building and still another because the Government's computer system crashed and electronic delivery was not made on time. In each of these, the CG (Comptroller General) ruled that it was the offeror's responsibility to ensure on-time delivery - the excuse was not one of the exceptions listed in FAR 15.208..

A recent Court of Federal Claims decision is about to change that thinking.

Last November, two companies submitted bids to USAID (Agency for International Development). The Government requested that those bids be sent electronically. Both companies submitted their proposals well before the 5:00 P.M. deadline however because of "computer" issues that were attributable to the Government's systems, those proposals were not delivered to the contracting officer until after the 5:00 P.M deadline. The USAID contracting officer rejected both bids as late. Both companies filed an appeal with the US. Court of Federal Claims.

The Judge didn't buy USAID's position. In fact, the Judge said that it "...makes little sense".

If defendant (the Government) is correct, one must conclude that the drafters of the FAR decided to impose on contractors the risk that, without warning, an agency computer could fail, causing a proposal electronically transmitted with reasonable time for it to be received to instead be declared late and out of the competition. The only way for a contractor to avoid this risk, according to the defendant, is for it to file its proposal by 5:00 P.M on the day before the submission is due - essentially, suggesting that whenever a solicitation or its equivalent requires electronic transmission, the due date should be viewed as being a day earlier than actually stated.

And, in a somewhat snarky summary comments, the Judge stated,

These cases somewhat painfully illustrate the thorny issues that can arise when the outmoded provisions in the Federal Acquisition Regulations (FAR) governing the delivery of electronic proposals - which date back to the last century - are applied to modern computer technology. As this deficiency is well-documented, and because, notwithstanding it, Federal agencies continue, in the name of electronic commerce, to exhort offerors to submit their proposals electronically, one might think that those same agencies would be hesitant to construe the FAR in a way that springs technological traps on their contracting partners - but, then again, perhaps not.

We don't know whether the Comptroller General will adopt this position in its decision making process. They should. In the meantime, contractors might as well take their appeals to the Federal Claims court instead of the of GAO.