Tuesday, February 23, 2016

"Late is late" for This Proposal Submitter

Last week we posted an article on the Court of Claims overturning a GAO bid protest decision that didn't go in the company's favor. The case involved a proposal received after the deadline established for proposal submission. The GAO essentially took the position that "late is late" and the bidder should have followed up to ensure that the Government receive its proposal (See Court of Claims Overturns GAO Late Proposal Decision). The U.S. Court of Federal Claims found that GAO did not have all the facts when rendering its decision. It found the Government's email systems had some fundamental flaws that prevented quite a few proposals from reaching their intended recipient.

Another "late is late" decision hit the streets today; this one also from the U.S. Court of Federal Claims but the results were different. The offeror did not prevail in this case as the Court determined that it was the offerors fault that the proposal was not received on time (see Johnson Controls v. United States).

The process of submitting a proposal in the "FedConnect" electronic system involved two steps. First, the user must upload the file and second, when the upload is complete, the user must click the "submit" button. In the latest case, the Johnson Controls employee responsible for submitting the proposal was not aware of the two step process. When the upload started and a message was returned that indicated the upload was in progress, the employee took no further action. The employee should have hung around until after the upload was complete and clicked the "submit" button.

FAR 52.215-1 provides an exception permitting consideration of an otherwise late proposal, so long as four conditions are met: (i) the proposal must be received before award is made, (ii) the contracting officer must determine that accepting the late offer would not unduly delay the acquisition, (iii) if submitted electronically, it must be received at the initial point of entry to the Government infrastructure not later than 5:00 p.m. one day before the date specified for receipt of proposals and (iv) there must be acceptable evidence that the proposal was under Government control prior to the time set for receipt of offerors. Government control in this context occurs when the offeror relinquishes control over the proposal such that the offeror can no longer modify the proposal.

Johnson Controls argued that its proposal was in Government control since it had been entered into the FedConnect system. The Court ruled that the Government had no way of knowing a proposal existed or accessing the proposal until someone clicked the "submit" button. Therefore, to contend that the Government had control is "stretching the language of the FAR beyond reason".

Offerors must read and understand how to submit quotes using FedConnect or any other electronic portal specified by the terms of the solicitation and make sure that the steps necessary for delivery of a proposal are taken precisely.

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