Agency: Department of Defense
Disposition: Protest Denied
Decided: January 2, 2020
Keywords: Electronic Filing; Late Submission
General Counsel P.C. Highlight:
Under FAR provision 52.212-1(f)(2)(i), the relevant question to determine if an electronically submitted proposal was submitted on time is when the email was received at the designated government office, not when it was sent.
Summary of Facts
Spanish Solutions Language Services, LLC, a small Florida business, protests the award of a contract to Human Touch Translations under RFP No. HQ0034-19-R-0355, issued by the Department of Defense, for translation services. Proposals were due by 11:00 a.m. on September 23, but Spanish Solutions’ proposal was not received until after the 11:00 a.m. deadline. Although the proposal was received after the deadline, the DOD evaluated Spanish Solutions’ proposal, and found it technically unacceptable for failing to include a final list of interpreters. The DOD awarded the contract to Human Touch Translations.
The relevant language in the RFP provided that:
[a]ny offer . . . received at the Government office designated in the solicitation after the exact time specified for receipt of offers is “late” and will not be considered unless it is received before award is made, the Contracting Officer determines that accepting the late offer would not unduly delay the acquisition; and — (A) 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 offers; or (B) There is acceptable evidence to establish that it was received at the Government installation designated for receipt of offers and was under the Government’s control prior to the time set for receipt of offers; or (C) If this solicitation is a request for proposals, it was the only proposal received.
Basis of Protest
Spanish Solutions argued that it timely submitted its proposal and that its proposal
met all of the RFP’s technical requirements. Specifically, Spanish Solutions claimed that the email it sent to the agency transmitting its proposal shows that it sent its proposal at 10:54 a.m. on September 23. However, the DOD argued that Spanish Solutions’ proposal was late and ineligible for award, since the DOD email gateways did not receive Spanish Solutions’ email containing its proposal until 11:04 a.m. Additionally, the DOD argued that none of the exceptions allowing consideration of a late proposal apply here. DOD noted that the proposal was not received at the initial point of entry to the government’s infrastructure by 5:00 p.m. the day prior to the deadline; Spanish Solutions’ proposal was electronically submitted; and Spanish Solutions’ proposal was not the only proposal received.
The GAO concluded that “it is an offeror’s responsibility to deliver its proposal to the proper place at the proper time.” Although Spanish Solutions argued that it submitted its proposal six minutes prior to the deadline and should not be considered late, the GAO found that “it is an offeror’s responsibility, when transmitting its proposal electronically, to ensure the proposal’s timely delivery by transmitting the proposal sufficiently in advance of the time set for receipt of proposals to allow for timely receipt by the agency.” Importantly, the GAO held that the relevant question is when the email was received by the designated office, not when it was sent. Since Spanish Solutions’ proposal was not received until after the deadline, the proposal was late and cannot be accepted.
Additionally, the GAO concluded that because Spanish Solutions’ proposal was late and therefore ineligible for award, Spanish Solutions was not an interested party to challenge the agency’s subsequent evaluation and award decision. Thus, the GAO dismissed its challenge to the agency’s evaluation of the proposal.
The GAO denied the protest on this basis.