Link: GAO Opinion
Agency: Department of the Army
Disposition: Protest denied.
Keywords: Timely filing; Electronic filing
General Counsel P.C. Highlight: It is the offeror’s obligation to deliver its proposal to the Agency in accordance with the terms of the RFP. Evidence of timely electronic transmission of a proposal is not sufficient to show timely delivery of the offeror’s proposal to meet the offeror’s burden to deliver its proposal to the proper place at the proper time.
A request for proposals (RFP) was issued by the Department of the Army for the provision of generators to the Fenty Forward Operating Base in Afghanistan. The Army intended to award to the lowest priced, technically acceptable offeror. The RFP said that proposals could be delivered electronically or in hard copy, but the RFP specifically stated that offerors were “responsible for submitting offers, and any modifications, revisions, or withdrawals, so as to reach the Government office designated in the solicitation by the time specified in the solicitation.” In response to the RFP, the Army received 74 timely proposals and 10 late proposals, and no proposal from Latvian Connection Trading and Construction, LLC . Latvian Connection protested the award of the contract, claiming that its bid was the lowest-priced, technically acceptable offer.
In response, the Army stated that it never received a proposal from Latvian Connection. In support of its position, Latvian Connection asserted that its “sent” e-mail folder confirmed transmission of its proposal at 1:19 a.m. on November 12, 2009. As additional evidence, Latvian Connection’s CEO stated that he transmitted the proposal as an attachment and that his records did not reflect that the e-mail was rejected or undeliverable.
According to FAR §15.208, it is the offeror’s responsibility to deliver its proposal to the proper place at the proper time. Here, GAO found that there was no evidence that the proposal was actually received by the agency. The Army said it performed searches of its emails on five separate occasions and found no evidence of Latvian Connection’s proposal. GAO held that evidence of timely electronic transmission of a proposal is not sufficient to show timely delivery of the offeror’s proposal to meet the offeror’s burden to deliver its proposal to the proper place at the proper time. Because Latvian Connection failed to satisfy its burden of showing that it timely delivered its bid to the Army, its protest was denied.