General Counsel, P.C.’s Government Contracts Practice Group is pleased to provide you with the Bid Protest Weekly. Researched, written and distributed by the attorneys of General Counsel, P.C., the Bid Protest Weekly allows the Government Contract community to stay on top of the latest developments involving bid protests by providing summaries of recent bid protest decisions, highlighting key areas of law, agencies, and analyses of the protest process in general.
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Late is Late–Especially in Government Contracting By: Marci Love Thomas
Although one can debate the social acceptability of being a few minutes late to a gathering with friends or family, in the world of government contracting there is no room for discussion, being late—even less than a minute—has dire consequences.
Recently, C2G Ltd. Co., a Service-Disabled Veteran-Owned Small Business, was the lead bidder for most of the duration of a Defense Logistics Agency (DLA) solicitation conducted using a third-party reverse auction system. With less than two minutes remaining in the thirty-minute competition C2G was displaced as the lead bidder by a competitor who submitted a lower bid. C2G attempted to unseat its rival by placing a revised bid with one second remaining in the reverse auction. Although C2G may have submitted its revised bid with one second to spare, C2G’s electronic bid was not successfully transmitted and received by DLA before the reverse auction closed.
C2G protested DLA’s non-acceptance of C2G’s revised bid. C2G argued the reverse auction system must have malfunctioned and that DLA was required to disclose the potential for delay between placing a bid and the system processing the data.
The U.S. Government Accountability Office (GAO) denied C2G’s protest, C2G Ltd. Company, B-411131, May 12, 2015 (http://www.gao.gov/products/B-411131#mt=e-report). GAO stated, “it is an offeror’s responsibility to ensure that an electronically submitted proposal is received by—not just submitted to—an agency prior to the time set for closing.” While GAO recognized the rule may seem harsh, GAO indicated “it alleviates confusion, ensures equal treatment of all offerors, and prevents one offeror from obtaining a competitive advantage that may accrue where an offeror is permitted to submit a proposal later than the deadline set for all competitors.” As for C2G’s claim that the possibility of delay in transmission should have been disclosed, GAO stated that an agency is not required to warn “offerors of every conceivable risk or obstacle they could face in submitting their proposals” and, moreover, that the potential delay for transmitting information electronically “is readily apparent from common experience using the internet.”
C2G’s case is a reminder that federal procurements have unforgiving deadlines which must be strictly adhered to for consideration of award. If a business chooses to pursue a federal contract, the business must insure that its proposal is received in a timely manner. That means anticipating traffic or security delays for in-person deliveries, as well as consideration for lag times in electronic transmissions due to internet connections or processing of information.
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