Tuesday, May 23, 2017

Proposal Gets Snagged in Email System - Received Late - Tossed

The Army issued a solicitation for emergency medical services at Tobyhanna Army Depot in Pennsylvania. The RFP (Request For Proposal) specified that proposals were due by 4:00 p.m.
One of the bidders made four tries at submitting its proposal electronically; 2:43 p.m., 2:57 p.m., 3:01 p.m, and 3:06 p.m. The Government servers however logged receipt of those three tries at 6:00 p.m., 6:05 p.m., 6:06 p.m., and 6:09 p.m. Since they were received by the Government after 4:00 p.m., the bidder, Western Star, was eliminated from the bidding.

Western Star filed a challenge to its exclusion with the Comptroller General. Western Start asserted that it submitted a timely bid package but that the Army's email system was not reasonably configured to accept it until several hours after the deadline. Further, Western Star asserted that the Army should have known of potential flaws in its email receiving system and should have used cautionary language in the solicitation for bidders to confirm receipt.

The Army looked into the matter and found that it was Western Star's email providers that delayed the email prior to receipt at the initial point of entry into the Army's infrastructure. The Army argued that it was not at fault as it has no control over commercial providers.

The Comptroller General was not at all sympathetic to Western Star's argument. The Comptroller General stated that it is an offeror's responsibility to deliver its proposal to the proper place at the proper time. Proposals that are not received in the designated government office after the exact time specified are late and generally may not be considered. "While the rule may seem harsh, it alleviates confusion, ensures equal treatment of all offerors, and prevents one offeror from obtaining a competitive advantage that may accrue where an offeror is permitted to submit a proposal later than the deadline set for all competitors".

FAR 52.212 cautions offerors, when transmitting proposals electronically, to do so well in advance of the cutoff date to avoid the situation that Western Star faced. That same FAR provision recognizes that Government email systems are not always flawless so it provides that proposals "received at the initial point of entry to the Government infrastructure" no later than 5:00 p.m. one working day before proposals were due, even if received by the designated Government office after the deadline, would be considered timely. That wasn't the case with Western Star.

There are obvious lessons to be learned in this case. The first one is don't wait until the last minute to submit your proposal. If the solicitation is important for your company's success, hand carry the proposal, if necessary. Second, no matter when you submit you proposal, follow up with the designated Government office to confirm they received your proposal. All it takes is a phone call. Thirdly, if you're late, don't waste your time on an appeal. The Government's actions must be extremely egregious for "late submission" appeals to be successful.

You can read the entire decision here.

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