Bid Protest Weekly Newsletter by Bryan R. King, Attorney, General Counsel PC
Date: Friday, December 13, 2013, 10:30am EST
RDT-Semper Tek JV, LLC, B-408811, December 9, 2013
JV Derichebourg-BMAR & Associates, LLC, B-408777, November 20, 2013
Tom Coughlin, the Super Bowl winning head coach of the New York Giants, is somewhat notorious for his insistence that if his players showed up to a meeting on time, they were actually late. He wanted his players arriving to meetings early, prepared and ready to go upon the meeting’s starting time. If the players failed to adhere to this philosophy, there were consequences. Government contractors might be wise to adopt Coach Coughlin’s “if you’re on time you’re late” rule when submitting proposal submissions.
Solicitations issued by the government have deadlines for when proposals have to be submitted. You have to cut off the receipt of proposals at some point, right? But just as it is a certainty that a solicitation will have a deadline, it is almost just as certain that there will be an offeror waiting until the absolute last moment to submit its proposal in order to utilize every second of preparation time possible. GAO recently released two bid protest decisions highlighting the importance for government contractors to be very mindful of solicitation deadlines.
In negotiated procurements such as the two discussed below, procuring agencies are required to include a clause in the solicitation informing offerors that proposals received at the designated place after the exact time specified in the solicitation will be “late,” and will not considered for award. (FAR § 52.215-1). There are exceptions to this rule which allow the agency to accept a late proposal. However, these exceptions are extremely limited, and as demonstrated below, offerors submitting proposals after the deadline are generally out of luck.
In RDT-Sempter Tek JV, LLC, the Dept. of the Army, Corps of Engineers issued a solicitation allowing offerors to submit proposals by hand delivery. However, the solicitation instructed offerors electing to submit a proposal via hand delivery to call prior to delivery due to heightened security at the delivery site. The protester in this case followed the solicitation’s instructions, calling the contracting office several hours before the deadline. However, the protester waited until the last minute to actually deliver its proposal. The protester received a receipt from the agency’s mailroom time-stamped 2:03 p.m., which was three minutes after the deadline set by the solicitation.
In JV Derichebourg-BMAR & Associates, LLC, the Dept. of the Navy, Naval Facilities Engineering Command issued a solicitation advising offerors to submit proposals via email. The protester informed the agency it would be sending its proposal in pieces, with the attached proposal documents to be included in two separate emails. However, the protester only included attachments with its first email, apparently forgetting to attach documents to email number two. As a result, the agency only sent the protester a confirmation of receipt for the first email. After not having received receipt confirmation for the second email, the protester eventually resent the second email with the attachments, but this was done after the deadline for receipt of proposals.
In both cases, the protester attempted to shift blame to the agency for its late submission. In RDT-Sempter Tek JV, the protester argued that it actually delivered its proposal to the designated government location at 1:58 p.m., two whole minutes prior to the 2:00 p.m. deadline. Its argument was that its proposal was in the control of the government prior to the deadline, triggering an exception to the lateness rule. In JV Derichebourg-BMAR & Associates, the protester argued that the agency was unreasonable in failing to notify the protester of a missing attachment. In the protester’s view, because the agency was informed that it would be receiving two emails with attachments, and the second email failed to include an attachment, it was obvious that something was wrong with the second email. GAO rejected both arguments, denying both protests.
The key principle relied upon by GAO in both denials is that it is an offeror’s responsibility to ensure the timely and complete delivery of its proposal. It is the fault of the contractor, not the agency, when an offer is delivered so close to the deadline that a few minutes lost due to waiting for a mailroom attendant is the difference between an on-time and late proposal. Similarly, when an offeror forgets to attach a required document to an email, the blame falls on the offeror, not the agency.
Generally speaking, the government is not looking to do any contractor any favors. Contractors should be very mindful of solicitation deadlines, and remember Coach Coughlin’s philosophy, “if you’re on time, you’re late.” Best practice would be to factor in a cushion for any potential issues with delivery. After all, a crucial step to compete for a government contract is to actually submit a proposal. You can’t win if you’re not in the game.