The Gap Widens Between COFC And GAO On Late Is Late Rule – Government Contracts, Procurement & PPP

We all know that failure to submit your bid proposal on time
usually leads to rejection. And the listing of exceptions to this
“late is late” rule could be very quick, offering solely 4
notable exceptions: (1) an offeror has acceptable proof of
authorities management of a proposal; (2) an offeror can set up a
systemic failure of presidency procedures leading to a number of
situations of misplaced data; (3) if electronically submitted, a
proposal was acquired by authorities infrastructure by 5:00 p.m. one
working day previous to the proposal submission date; and (4) if there
is just one offeror. But what if you happen to submitted your proposal on
time and the company’s server rejects the submission with out
bothering to tell you?And what if the premise for rejection was an
undisclosed limitation inside a server on e mail measurement? Does such
delay qualify as an exception to the “late is late” rule?
The reply is dependent upon which discussion board you ask.

According to the GAO in Ace Electronics Defense Systems,
, B-420863, September 2, 2022, the offeror is at fault and
the proposal is correctly rejected. However, in keeping with the Court
of Federal Claims in eSimplicity, Inc. v. United States,
No. 22-543C, Oct 13, 2022, the federal government is at fault for not
informing the offeror of the limitation.

In Ace Electronics, a Department of the Navy, Naval
Surface Warfare solicitation instructed offerors to submit their
proposals electronically on to the e-mail accounts of the
contracting officer and contract specialist. The protester did so
for its preliminary proposal and the company included the protester in
the aggressive vary. Final Proposal Revisions (FPRs) additionally had been
required to be submitted on to the contracting officer and
contract specialist’s e mail accounts.

It was undisputed that the protester complied with the
instructions and electronically submitted its FPR to the contracting
officer and contract specialist previous to the time set for receipt
of FPRs.However, emails despatched throughout the Navy’s e mail system
first are routed to an Enterprise Email Security Gateway for
screening.If the e-mail passes screening, it then proceeds to a
Navy-specific safety screening gateway, after which to the
Navy’s server (known as FlankSpeed) specialist. The FlankSpeed
server has a file measurement limitation of 30MB for e mail from exterior
sources; blocking all emails that exceed this restrict.The protester
was unaware of this measurement limitation because it was not disclosed within the
solicitation or in any other case.Because the protester’s FPR was
31.58MB, the FlankSpeed server rejected the e-mail and thus didn’t
ship it to the contracting officer and contract specialist.
There additionally was no indication that the protester was well timed notified
of this rejection.

The protester argued that it well timed submitted its proposal in
accordance with the solicitation’s directions, the Navy thus
had acquired the proposal in a well timed method, and an offeror can’t
moderately be held to be “chargeable for the internal workings
of presidency communications.” But the GAO disagreed.

GAO reasoned that the e-mail, although technically throughout the
Navy’s system in a well timed method, by no means made it to the e-mail
bins designated within the solicitation, and so weren’t technically
“acquired.” The GAO was unfazed by the truth that the
solicitation by no means disclosed there was a measurement limitation for the
e mail server.Rather, the GAO discovered the offeror was nonetheless
chargeable for guaranteeing that the e-mail was acquired.As a end result,
the GAO held the Navy was inside its rights to exclude the
protester’s proposal as late.

Compare GAO’s holding with the Court of Federal Claims
resolution in eSimplicity. In eSimplicity, a Navy
solicitation required that proposals be submitted by e mail and
included directions about proposal formatting, however didn’t
embody data on most file measurement. The protester emailed its
proposal earlier than the deadline in accordance with these directions,
however didn’t obtain a affirmation of receipt or supply failure
discover.Like in Ace Electronics, a forensic investigation
confirmed that the protester’s e mail well timed reached a Department
of Defense server, however was bounced again by the Navy server as a result of
it exceeded the utmost file measurement. The Navy rejected the proposal
as late.

In distinction to the GAO’s ruling, the Court of Federal Claims
discovered the Navy erroneously rejected the protester’s proposal
merely due to file measurement. In a novel method, the Court held
the Navy finally utilized unspoken analysis standards in doing
so, as a result of there was nothing within the solicitation that indicated a
file measurement limitation.

In its evaluation, the Court of Federal Claims additionally mentioned
divergent opinions on the federal government management exception outlined in
FAR 52.215(1)(c)(3), discovering that the federal government management exception
can apply to electronically submitted proposals. The Court
contemplates that reaching the preliminary authorities server could
fulfill the federal government management exception, however remanded to the Navy
to make that willpower.


GAO’s resolution leaves open some attention-grabbing questions.For
instance, how is an offeror supposed to substantiate receipt of a
proposal except it’s incumbent upon the company to take action?If the
burden is on an offeror to substantiate receipt of a proposal, how a lot
time does an offeror have to hunt company affirmation?And what if
the company fails to offer affirmation of receipt or rejection?If
businesses are usually not obligated to reveal the complete necessities and
limitations for submission of digital proposals, then from the place
does the duty to substantiate receipt come up?Further, is the
absence of the identification of the server limitations in a
solicitation calling for digital proposal submission a
solicitation defect that must be protested previous to the time
set for receipt of proposals? The solutions to those questions stay
to be seen.

The ethical of this story is that in submitting proposals, the
satan is within the particulars – even when the company doesn’t share these
particulars. Companies ought to remember to overview the proposal submission
instructions within the solicitation to make sure they’re full and
determine any doable limitations – notably if digital
submission is required.

Further when selecting a venue for protest challenges of alleged
late digital submissions, the Court of Federal Claims seemingly is
a extra hospitable venue.

The content material of this text is meant to offer a common
information to the subject material. Specialist recommendation ought to be sought
about your particular circumstances.

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