Decided: September 21, 2021
Agency: Department of the Navy
Disposition: Protest Denied
Keywords: Late Proposals
This proposal showcases the importance of understanding all FAR and solicitation requirements and ensuring proper compliance with these requirements. Here, Starblast’s proposal was not considered for award, because it was untimely. While Starblast may have been able to salvage the bid by meeting all the requirements to fall under the late proposal exception and have its proposal considered, it failed to satisfy the criteria. The late proposal exception at issue here provides that a proposal will not be considered late if: (1) it is received before award is made; (2) will not unduly delay the acquisition; and (3) if it was transmitted through an electronic commerce method authorized by the solicitation, it was received at the initial point of entry to the Government infrastructure not later than 5:00 p.m. one working day prior to the date specified for receipt of proposals. All three criteria must be met for the exception to be applicable.
Government Contactors must adhere to extremely demanding timelines when submitting proposals because the Government is unforgiving on untimely submissions. Companies should thoroughly evaluate the potential for success with any protest situation, especially when considering an exception to the late proposal rule. The time, expense, and negative consequences associated challenging your Government customer warrants a strategic evaluation between your executive leadership, capture, proposal, and legal teams. General Counsel has the experience and drive to assist clients with assessing award decisions, developing legal courses of action, filing either as an unsuccessful bid protestor or the awardee intervenor, litigating the protest, and developing post-decision lessons learned for more effective future business development practices.
Summary of Facts
Starblast Corporation protests the rejection of its proposal by the Department of the Navy, Naval Supply Systems Command, under request for proposals (RFP) No. N6264921R0038, for worldwide expeditionary support and services in a variety of regions across the world. The RFP was issued on March 2, 2021, and listed four email addresses to which offerors were to submit their proposals. All proposals were to be received no later than 3:00 pm JST (Japanese Standard Time), Monday, April 19, 2021. The RFP advised offerors that emailed proposals “shall be in either Adobe or Microsoft Word format,” and the Government may be unable to receive other types of electronic files or files in excess of ten megabytes.
The RFP also stated that, to be timely, “an email proposal must be received in its entirety in the designated email box by the due date and time for proposal submission.” Under the RFP, “[a]n e-mail proposal that resides on a [g]overnment server, but has not appeared in the designated e-mail inbox by the due date and time for proposal submission will be considered late unless the exception at FAR 52.215-1(c)(3)(ii)(A)(1) applies.”
Just before the submission deadline, the Navy received an email from Starblast, with five attachments and two web-links to drive.google.com addresses. The contracting officer informed Starblast that the Navy was unable to access files on the Google Drive links, and that the documents attached to the email alone did not meet the required documentation in the solicitation. The contracting officer requested that Starblast resubmit missing elements by 4:00 pm JST April 20, 2021, or Starblast’s “proposal will be determined non-compliant with the solicitation requirements, and you will not be considered for award.” Starblast responded that it would resend the missing files, but the Navy claims that it did not receive the requested, missing files by the revised deadline or prior to contract award. The agency claims it never received “a proposal from Starblast that conforms to the solicitation requirements.”
Basis of Protest
Starblast argues that the Navy should have considered its proposal under the FAR’s electronic commerce exception to the late proposal rule.
GAO explained that the FAR exception at issue here provides that a proposal will not be considered late if: (1) it is received before award is made; (2) will not unduly delay the acquisition; and (3) if it was transmitted through an electronic commerce method authorized by the solicitation, it was received at the initial point of entry to the Government infrastructure not later than 5:00 p.m. one working day prior to the date specified for receipt of proposals.
Here, Starblast argues that since the contracting officer’s June 16 invitation for Starblast to resubmit its proposal did not include a deadline for that resubmission, Starblast’s June 16 proposal transmission was “not later than 5:00 p.m. one working day prior to the date specified for receipt of proposals.” However, GAO found that the late proposal exception is inapplicable here, since the Starblast’s proposal never reached the designated email addresses. GAO explained that the FAR exception requires that a proposal be received before award is made. “Receipt of a proposal at the initial point of entry prior to 5:00 p.m. the day before proposals are due” is not an independent exception to the rule that late proposals will not be considered. Instead, this requirement “is one of several conditions that must be satisfied for a late proposal to be considered. Here, the RFP set the designated location as four specific email addresses, and the agency claims that it never received a compliant proposal from Starblast.
Since Starblast’s proposal submission did not meet the conditions necessary under the FAR exception to the late proposal rule, Starblast has no basis to argue that the agency unreasonably excluded the protester’s proposal from consideration. GAO denied the protest.
Our Government Contracts Practice Group has extensive experience in government contract law, helping clients solve their government contract problems relating to the award or performance of a federal government contract, including bid protests, contract claims, small business concerns, and teaming and subcontractor relations. If you need more guidance or information, contact Craig Lawless, Senior Counsel in our Government Contracts practice area at General Counsel, P.C., 703-266-1865.