Don't be Bullied

Over the years, there have been many bid protests by companies that were excluded from consideration based merely on the fact that their proposals were not received by the by the time and/or at the place specified in the solicitation. Even a few minutes late has disqualified a proposal. The Comptroller General (a.k.a. GAO or Government Accountability Office) has been very consistent in holding companies responsible for complying with the specific instructions contained in solicitation instructions. If the solicitation requires that a proposal be received by 4:30 PM on such and such date, a proposal received a 4:31 PM will be disqualified. If the solicitation requires that a proposal be received at the contracting officers desk by 4:30 PM, a proposal that shows up at the main gate of a sprawling military base before 4:30 PM but does not find itself on the contracting officer's desk by 4:30 PM will be disqualified. The Government does not allow any leeway nor does the Comptroller General when the case is appealed.

In a recently published bid protest decision involving a late proposal, the Comptroller General sided with the bid protestor for a change. But, the fact situation was a little different than other cases.

In this case (see ICI Services, Inc., B-409231.2: April 23, 2014), the protestor challenged the rejection of its proposal as late, arguing that the Navy's position is based on on "overly rigid interpretation" of the solicitation instruction and a "strained reading" of the undisputed facts. The solicitation required that offeror proposals be submitted through the Navy's electronic portal. When ICI had technical difficulties submitting through that portal, the company asked for and received permission from a contract specialist to submit their proposal via email.

The Navy subsequently rejected ICI's proposal because it wasn't submitted through it electronic portal. In defense, the Navy made some puzzling arguments. The Navy stated that the contracting specialist's acceptance of ICI's proposal by email was invalid because the contract specialist had mistakenly assumed, based on ICI's submission of the proposal via email that ICI had experienced technical difficulties in trying to access or use the Navy's electronic portal system. In fact, the Navy even suggested that the contract specialist was misled by ICI since ICI could not prove that it had experienced technical difficulties.

The Comptroller General (CG) rejected the Navy's arguments stating: "As relevant and dispositive here, the record shows that the Navy installation designated for receipt of proposals was in receipt of ICI's ... proposal by the closing time for receipt of  ... proposals". The record established:

1. the solicitation provided an alternative means for submitting proposals when there were difficulties with the portal
2. several other offerors and the Navy itself, encountered technical difficulties with the portal
3. ICI requested and received permission to submit its proposal by email and dis so before the closing time for receipt of proposals.

The Navy's actions here are very curious and, as former auditors trained to have questioning minds, we suspect there is more to this story that was not part of the CG's decision.