The Gap Widens Between COFC and GAO on Late is Late Rule | Sheppard Mullin Richter & Hampton LLP

We all know that failure to submit your bid proposal on time sometimes leads to rejection. And the listing of exceptions to this “late is late” rule is very quick, offering solely 4 notable exceptions: (1) an offeror has acceptable proof of presidency 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 obtained 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 should you submitted your proposal on time and the company’s server rejects the submission with out bothering to tell you? And what if the idea for rejection was an undisclosed limitation inside a server on electronic mail measurement? Does such delay qualify as an exception to the “late is late” rule? The reply relies upon on which discussion board you ask.

According to the GAO in Ace Electronics Defense Systems, LLC, 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 within the aggressive vary. Final Proposal Revisions (FPRs) additionally have been required to be submitted on to the contracting officer and contract specialist’s electronic 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 inside the Navy’s electronic 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, and then to the Navy’s server (referred to as FlankSpeed) specialist. The FlankSpeed server has a file measurement limitation of 30MB for electronic 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 obtained the proposal in a well timed method, and an offeror can not fairly be held to be “accountable for the internal workings of presidency communications.” But the GAO disagreed.

GAO reasoned that the e-mail, although technically inside the Navy’s system in a well timed method, by no means made it to the e-mail packing containers designated within the solicitation, and so weren’t technically “obtained.” 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 accountable for making certain that the e-mail was obtained. 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 choice in eSimplicity. In eSimplicity, a Navy solicitation required that proposals be submitted by electronic 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 electronic 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 in the end 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 dedication.

Conclusion

GAO’s choice leaves open some attention-grabbing questions. For instance, how is an offeror supposed to substantiate receipt of a proposal until it is 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 supply affirmation of receipt or rejection? If businesses aren’t 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 evaluate the proposal submission instructions within the solicitation to make sure they’re full and establish any potential limitations – significantly if digital submission is required.

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