Bid Protest Weekly Newsletter by Bryan R. King, Attorney, General Counsel PC
Date: Friday, March 21, 2014, 10:00am EST
DJW Consulting, LLC, B-408846.3, December 18, 2013
In our last article, we discussed a case in which an offeror basically disqualified itself from further consideration for award after failing to respond to a discussion letter sent by the procuring agency. One of the issues in that case was the protester’s claim that due to an internal failure with its email system, it actually didn’t receive the agency’s discussion letter until it was too late to respond. GAO denied that protest, essentially finding that there was nothing improper about the agency declining to extend the response deadline due to the protester’s technical issues.
It is simply a fact of life (and business) that we depend on technology to operate on a daily basis. The protester from that previous article relied upon its internal email system, assuming that its incoming emails were getting through. That understandable reliance ended up jeopardizing a contracting opportunity. This week, we focus on another recent case involving a similar situation when an email malfunction prevented an offeror from receiving an award.
In DJW Consulting, LLC, the Department of the Air Force issued a solicitation as a competitive 8(a) set-aside seeking advisory and support services for the Air Force District of Washington Procurement Directorate. The solicitation informed offerors that the award would be made without discussions, and the award would go to the lowest-priced, technically acceptable offer. Prior to submitting a proposal, the offerors were required to submit an organizational conflict of interest (OCI) plan.
After receiving proposals from 25 offerors, the agency found that the lowest-priced proposal was unacceptable. Thus, it moved on to the second-lowest priced proposal, which was submitted by the protester, DJW Consulting. However, the agency found that this proposal was also unacceptable, as DJW Consulting did not submit an OCI plan as required. After an award was made to the third lowest-priced proposal, DJW Consulting filed a bid protest with GAO. DJW Consulting argued that it submitted its OCI plan to the agency via email, and thus the agency improperly determined that its proposal was unacceptable.
The interesting question in this case, is how secure should offerors feel when they submit required documents to an agency via email? Emails are so ubiquitous at this point in time, it is natural to assume that sent emails get to where they are supposed to go. In this case, DJW Consulting presented evidence that as it sent the email to the agency with the OCI plan, it requested a delivery confirmation through its company email system. The company system generated a report showing that “Delivery to these recipients or group is complete, but no delivery notification was sent by the destination server.”
DJW Consulting apparently focused on the “delivery is complete” portion of the message, as it did not follow up with the agency to ensure the email went through. A follow up would have been a good idea in this case, as the agency apparently did not receive the email with DJW Consulting’s OCI plan. The agency represented to GAO that in response to the protest, it made several searches through its email system to locate DJW Consulting’s email, but no such email was identified. As a result, GAO denied the protest. GAO reasoned that because DJW Consulting could not provide any evidence that the agency actually received the email that was sent, there was no basis to sustain.
In its decision, GAO noted that the awardee also sent its OCI plan via email. However, in contrast to DJW Consulting, the awardee also specifically requested from the agency an acknowledgment of receipt, which the agency provided. Had DJW Consulting also requested an acknowledgement from the agency, it might have had an opportunity to resend the OCI plan prior to the deadline. DJW Consulting’s mistaken belief that its OCI plan email was delivered to the agency probably ended up costing it an award.
Obviously, this case has a simple lesson for government contractors. When it comes to transmitting important proposal documents by email, it is best to stick with the old expression made famous by President Reagan: Trust, but verify. A simple follow up with the agency may prevent a contractor from missing out on an opportunity for award.