Submitting your company's bid proposal close to the deadline can be risky and have grave consequences. The government has repeatedly rejected proposals submitted before, but received after, the deadline because of technical glitches. In submitting a proposal for a government contract, the onus is on the contractor to ensure that its proposal is received prior to the exact time specified for receipt of proposals. The deadlines set forth in the solicitation are strictly enforced unless: the agency receives the proposal before the contract is awarded, the contracting officer determines that accepting the late proposal would not unduly delay the acquisition, and: (i) the proposal was submitted electronically and received at "the initial point of entry to the Government infrastructure not later not later than 5:00 p.m. one working day prior to the date specified for the receipt of proposals," (ii) the proposal was "received at the Government installation" and was "under the Government's control" before the solicitation deadline, or (iii) it was the only proposal that the Government received. FAR 15.208(b)(1)(i)-(iii). This applies not only to defense and IT contractors, but also to health care companies competing for government contracts. See FAR 15.208(b)(1) ("Any proposal, modification, or revision, that is received at the designated Government office after the exact time specified for receipt of proposals is 'late" and will not be considered."); see also FAR 52.212-1(f)(2) ("offer, modification, revision, or withdrawal of an offer received at the Government's office designated in the solicitation after the exact time specified for receipt of offers is 'late' and will not be considered" ).
Sent Is Not Received
A recent series of GAO bid protest decisions confirms that the government strictly applies the proposal deadlines and places a heavy burden on the offeror to ensure the proposal is received, rather than just submitted, before the deadline closes. For example, in the health care space, in Western Star Hospital Auth., Inc., B-414216.2, 2017 WL 2212178 (May 18, 2017), the offeror submitted four separate emails presenting its proposal prior to the 4:00 p.m. deadline on the date of submission. The agency, however, did not actually receive the offeror's emails until after the deadline. In a protest challenging the rejection of its proposal as untimely, the offeror provided evidence from its email provider showing that it had submitted the proposal by sending the emails prior to the deadline. The GAO held, however, that this was insufficient to meet the offeror's burden of ensuring the proposal is received by the agency's initial point of entry before the proposal deadline. Because the technical glitch occurred on the offeror's end, before entering the agency's email server, the GAO explained that it had not been transmitted by the deadline, and the agency reasonably rejected the proposal as untimely.
Too Large May Be Too Late
Similarly, email attachments that exceed the agency's size limit can also preclude the timely receipt of otherwise timely submitted proposals. In Washingtonian Coach Corp., B‑413809, 2016 CPD ¶ 378 (Dec. 28, 2016), the offeror emailed its proposal submission before the proposal submission deadline, and contacted the agency via email and phone to ensure that its proposal had been received before the deadline. The contracting officer did not learn and thus did not inform the offeror that its proposal had not been timely received because of the size of its email attachments until several days after the deadline for proposal submissions. When the contracting officer did finally inform the offeror that its proposal was rejected, it explained that the emails were sent, but not received by the agency's system because they exceeded the size limit for the agency's email system. The GAO upheld the agency's rejection of the proposal as late, explaining that it was the offeror's duty to ensure the proposal was timely received at the initial point of entry before the time set for closing.
23 Seconds Too Late
In addition to ensuring that the proposals are received by the proposal deadline, notwithstanding any technical challenges, contractors must ensure that the responsible individual actually clicks "submit" prior to the exact time stated in the RFP — down to the second. For example, in Tele-Consultants, Inc., B-414135.1 (February 27, 2017), the GAO confirmed that the agency will not consider a proposal as "actually received" if it was not submitted, in final form, by the exact cut-off time identified in the solicitation. In that case, the protester challenged the rejection of its proposal submission as untimely as it was submitted a mere 23 seconds after the proposal submission deadline. The agency's procurement portal required the offeror to first upload the draft proposal to its system, and then separately submit it as final only after the offeror pressed the "Submit Signed Proposal" button. The agency had an electronic record showing that the protester had uploaded the draft submission prior to the deadline, but it had not attempted to submit its proposal through the agency's online portal until 23 and 34 seconds after the cut-off time. In denying the bid protest, the GAO held that uploading the draft proposal was insufficient to place it within the government's control when the solicitation clearly required a second step.
Given the GAO's strict enforcement of proposal submission deadlines, contractors need to be sure to leave ample time to electronically submit their proposals (including all attachments) in the event of technical difficulties, which may preclude the agency's receipt prior to the stated deadline.
This article is presented for informational purposes only and is not intended to constitute legal advice.
