Monday, July 18, 2016

Don't Assume the Government Received Your Email Proposal - Verify

The Treasury Department issued a "best value" solicitation for cybersecurity services. Blue Glacier was one of the bidders but its bid, according to the Treasury Department, was late. Bids were due at 2:00 PM (Eastern). Blue Glacier submitted its bid via email around 11:00 AM, approximately three hours before the cut-off. There was a problem however. Blue Glacier's email bid, it was eventually discovered was quarantined in Treasury's email filtering system due to suspected "phishing". Blue Glacier assumed that its bid was received since previous correspondence to the same email address was received and responded to. After a couple of months and not hearing anything from Treasury, Blue Glacier contacted Treasury to inquire the status of the procurement. Treasury told Blue Glacier that it had never received its bid and was not in contention for the contract. When Treasury awarded the contract to another bidder, Blue Glacier appealed stating that:

  • The failure of  its email quotation to arrive at the email address specified in the solicitation was due to problems with the Treasury's email system.
  • Treasury should consider its late quotation under the "government control" exception.

According to the GAO, it is the vendor's responsibility, when transmitting its quotation electronically, to ensure the delivery of its quotation to the proper place at the proper time. Quotations that are received in the designated government officer after the exact time specified are late and generally may not be considered for award. While this rule may seem harsh in some circumstances, it alleviates confusion, ensures equal treatment of all vendors, and prevents one vendor from obtaining a competitive advantage that may accrue where a vendor is permitted to submit a quotation later than the deadline set for the competition.

Basically, the GAO said that Blue Glacier should followed up with Treasury the same day to ensure that its email proposal had been received - not wait a couple of months. The primary evidence establishing that Blue Glacier properly submitted its quotation is Blue Glacier's copy of an email. This copy does not demonstrate that a quotation was received by Treasury in a manner consistent with the solicitation.

Blue Glacier's argument that the email proposal was under "government control" didn't persuade GAO either. GAO has consistently held that in determining whether a quotation was under the Government's control prior to the time set for receipt of quotations, a vendor must have relinquished custody of the quotation to the Government so as to preclude any possibility that the vendor could alter, revise, or other wise modify its quotation after other vendors' competing quotations have been submitted. In this case, Treasury dumps undelivered messages after 30 days and there is no longer any evidence to confirm that Blue Glacier's bid was received prior to the cutoff.

GAO denied the protest. If only Blue Glacier had followed up the very same day that it submitted its proposal, it would have at least been considered for the award and this protest would not have been necessary.

You can read the entire Bid Protest Decision here.

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