With Electronic Proposals, Sometimes Even On-time Submissions Can Be Late | Husch Blackwell LLP

Punctual individuals usually stay by the maxim: “If you’re early, you’re on time. If you’re on time, you’re late.” When submitting digital proposals beneath FAR 52.212-1, these are phrases to stay by. Even in case you submit your digital proposal on time, and even when it reaches authorities servers earlier than the proposal deadline, it’d nonetheless be thought of late if it will get caught within the company’s spam folder or e-mail quarantine.

This was precisely the case in VERSA Integrated Solutions, Inc., B-420530 (Apr. 13, 2022). VERSA, an 8(a) small enterprise, submitted an digital proposal beneath an RFP looking for audio and visible assist providers for the Department of Health and Human Services. The RFP established two phases. Phase 1 required digital submissions on company expertise and technical method by 12pm ET on November 12, 2021 to an company e-mail tackle. HHS would then consider Phase 1 proposals to determine who would advance to Phase 2. There was no dispute that VERSA submitted its Phase 1 proposal to the company e-mail tackle previous to the deadline. Three months later, VERSA requested HHS for an replace and was instructed that its proposal was by no means acquired. Following an investigation on the company’s finish, HHS decided that VERSA’s proposal was quarantined by the federal government’s e-mail server as a result of it contained macro information that may comprise malicious code.

One would possibly suppose that might resolve the matter. VERSA’s proposal clearly reached the federal government’s server earlier than the deadline however was quarantined and didn’t arrive to the CO for causes past VERSA’s management. So VERSA’s proposal must be evaluated to proceed to Phase 2, proper? Not in keeping with GAO.

GAO famous that offerors bear accountability for getting their proposals “to the correct place on the correct time.” Although VERSA seemingly did that right here, GAO famous that FAR 52.212-1(f) requires that digital proposals be submitted early to not threat being late. Specifically, FAR 52.212-1(f)(2)(i)(A) requires that digital proposals be submitted by 5:00pm one working day prior to the proposal deadline:

Any provide, modification, revision, or withdrawal of a proposal acquired on the Government workplace designated within the solicitation after the precise time specified for receipt of gives is “late” and won’t be thought of except it’s acquired earlier than award is made, the Contracting Officer determines that accepting the late provide wouldn’t unduly delay the acquisition; and

    • If it was transmitted by an digital commerce technique approved by the solicitation, it was acquired on the preliminary level of entry to the Government infrastructure not later than 5:00pm one working day prior to the date specified for receipt of gives . . . .

VERSA didn’t meet the one-day prior deadline. They submitted their proposal on time, however not early. And in terms of digital proposals, in case you’re solely on time, you’re late.

For those that have encountered this example earlier than with onerous copy proposals, you could have discovered that every one you needed to do was present proof exhibiting that the proposal was beneath the federal government’s management previous to the proposal deadline. That is as a result of, no less than on its face, FAR 52.212-1(f) makes a distinction between digital transmission and onerous copy submissions. Subpart (A) of the supply (copied above) offers with digital submissions, so these proposals don’t get the advantage of the language in subpart (B). GAO has persistently acknowledged this distinction since 2002. VERSA requested GAO to rethink its place on this level however GAO declined.

So the following time you end up submitting an digital proposal on a solicitation for a industrial merchandise, ship the proposal in the future early simply in case.

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