Friday, May 26, 2017

Proposal Submitted 23 Seconds Late is Rejected

The Navy issued an RFP to small business holders of the SeaPort-e multiple award indefinite-delivery/indefinite-quantity (ID/IQ contract. The RFP required the electronic submission of proposals via the SeaPort-e portal by 2:009 p.m. (Eastern Time). Under the SeaPort-e contract, an offeror's representative is required to confirm his or her intention to engage in a legally binding electronic action. In this regard,when a user intends to take an action that is legally binding, the portal displays a notice and requires the user to confirm the request before the system will complete the request. Once a legally binding proposal is submitted, the system stores a locked copy of the information which cannot be altered or modified in any way.

By the 2:00 p.m. closing time, three final proposals were submitted through the portal but Tele-Consultants, Inc's (TCI's) proposal was not among the three. Instead, TCI's proposal remained in the draft proposal section of the portal. TCI did not engage the "Submit Signed Proposal" button before the closing time. TCI panicked and hit the Submit Signed Proposal" button twice, once at 23 seconds after 2:00 p.m. and the other at 34 seconds after 2:00 p.m. When that didn't work, TCI phoned and emailed the Navy claiming that the portal was malfunctioning. The contracting officer sent an inquiry to the system administrator who reported no malfunctions. The contracting officer then notified TCI that its draft proposal will not be considered.

TCI challenged the rejection. TCI asserted that its proposal was timely submitted and even if late, should have been viewed as subject to the "government control" exception of FAR 15.208. The Navy responded that because TCI never engaged the "Submit Signed Proposal" button, TCI did not submit a signed final proposal, either prior to the deadline or thereafter. The Navy explained that it is only when an offeror engages the "Submit Signed Proposal" button that a proposal is uploaded to the Government side of the portal and becomes a signed legally binding submission. As a result, TCI's proposal was not "received" at the time of closing.

TCI challenged the significance of engaging the "Submit Signed Proposal" button, arguing that its failure to engage the button was irrelevant because, at the time of closing, its proposal was uploaded to the correct Government location and thereby in the Government's control.

The GAO (Comptroller General) disagreed and denied the protest. The GAO noted that TCI "never actually submitted its proposal. There were no technical issues preventing TCI from submitting its proposal prior to the closing time. TCI filed to "hit the submit button" prior to closing - an action necessary to legally bind the offeror and to submit the proposal.

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