Thursday, August 18, 2016

GAO Is Not Sympathetic towards Contractors Submitting Late Proposals

There are a high number of GAO bid protests involving late submissions of proposals. Bidders who have been disqualified because their proposals were not received in the time and manner specified in the solicitation often protest the Government's actions - usually on the grounds that they tried to comply with the submission instructions but the bid got stuck in the Government's email system or the guard at the gate wouldn't let them in to hand-deliver a proposal. It is very rare that the Comptroller General (CG) will sustain such protests. The CG pretty much takes the position that its the bidders responsibility to figure things out. One recent exception involved an email glitch that quarantined several bidders on the same solicitation. That time, according to the CG, it was the Government's fault.

The Comptroller General (CG) just published another bid protest decision involving a late bid. In this latest case, the bidder argued that its proposal was improperly rejected as late for reasons primarily due to the Government's fault.

The solicitation specified that the closing date and time for receipt of proposals was 3:00 P.M local time on May 24, 2016.

On the day that the proposals were due, the protestor placed a series of calls (perhaps 13 calls) to the contracting officer and contract specialist leaving messages. The contracting officer was working off-site that day but did receive a couple of voice messages regarding the bidders attempt to deliver its proposal. After the cut-off time, the contracting officer returned the calls and reiterated that any proposal received after 3:00 PM was be considered late.

Two days later, DLA received a FedEx package with the bidder's proposal with tracking information showing that it had been shipped a day earlier. Subsequently, DLA notified the bidder that its proposal was late and would not be considered.

In its appeal, the bidder argued that the unavailability of the contracting officer and contract specialist prior to the proposal deadline resulted in its inability to submit its proposal on time because it was not given direction as to where to deliver its proposal. The bidder also stated that its courier went to three different security checkpoints, but ultimately was unable to deliver its proposal because the security guards could not contract either the contracting officer or the contract specialist to provide an escort to deliver the proposal.

DLA disputed the bidder's contention that it had left voice mails prior to the cut-off time.. Additionally, DLA noted that the bidder did not send an email requesting assistance to deliver its proposal until after the 3:00 PM cut-off time. Thirdly, DLA's business office was open and had personnel available to serve as escorts. Finally, DLA noted that several other offerors were able to hand carry their proposals prior to the deadline.

Based on the record, the CG found no evidence of any improper agency action and concluded that the protester's actions in not following the solicitation instructions were the paramount cause for the late delivery and accordingly, denied the protest.

The full text of the CG decision can be found here.

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