Link: GAO Opinion
Agency: Department of the Army
Disposition: Protest denied.
Keywords: Late Proposals
General Counsel P.C. Highlight: It is an offeror’s responsibility to deliver its proposal to the proper place at the proper time, and late delivery generally requires rejection of a proposal.
Metters, Incorporated (Metters) protests the rejection of its proposal as late by the Department of the Army under a request for proposals (RFP), which provides for the issuance of a delivery order for the design, development, fabrication, test and delivery of a virtual training system for dismounted soldiers.
The Army awarded multiple indefinite-delivery, indefinite-quantity (ID/IQ) contracts for simulation and training products and services. The agency then competed among the ID/IQ holders the award of a delivery order, on a best-value basis, for a virtual training system. The task order RFP included detailed instructions for the submission of proposals, including that proposals be received by the agency at the Army’s Program Executive Office for Simulation, Training and Instrumentation (PEO), 3100 Technology Parkway, Orlando, Florida, no later than 3 p.m. on July 1, 2010. Offerors were instructed that “[t]he proposal shall be submitted in three sets of two CDs each.”In addition, the RFP expressly stated that paper copies were not authorized, and that offerors were not permitted to submit their proposals by email or facsimile.
On the specified closing date, at approximately 2:13 p.m., one of Metters’ proposed subcontractors attempted to email its cost proposal to the agency’s contract specialist. The contract specialist responded by email to the subcontractor at 2:27 p.m. that submission of the proposal by email was not authorized and that the proposal must be received by the agency by 3 p.m. that day by hand delivery or mail. At approximately 2:45 p.m. on July 1, the protester and one of its subcontractors arrived at the specified address and called the contract specialist; the contract specialist met Metters at approximately 2:57 p.m., at which time Metters submitted the protester’s proposal on six CDs (including three copies, each, of the technical and cost proposal CDs) and sealed, printed copies of its two subcontractors’ proprietary cost information and proposals. The contract specialist returned the sealed envelope with the subcontractors’ proposals and informed the protester that paper proposals, including the subcontractors’ submissions, were not permitted under the RFP. The contracting officer determined that Metters’s proposal was incomplete as initially submitted, given that it did not include the subcontractors’ proposals as required by the RFP, and Metter’s complete proposal, with subcontractors’ proposals, was late.
Metters asserts that its proposal should not have been rejected as late, arguing that a complete copy of its proposal (with the paper versions of the subcontractors’ proposals) was submitted to the agency before 3 p.m.GAO states that it is an offeror’s responsibility to deliver its proposal to the proper place at the proper time, and late delivery generally requires rejection of a proposal. The late proposal rule alleviates confusion, ensures equal treatment of offerors, and prevents one offeror from obtaining a competitive advantage as a result of being permitted to submit a proposal later than the deadline set for all competitors.
GAO finds that the record shows that the agency did not receive a complete proposal in the correct format from Metters until after the closing time specified in the solicitation, and therefore its proposal was late. Although Metters notes the agency had received all but the subcontractors’ proposals by the 3 p.m. closing time, offerors were required to submit their complete proposal to the agency by the closing time, and timely delivery of part of a proposal does not constitute the timely submission of the proposal.
GAO does not agree that the protester’s late submission of a complete proposal was caused by some ambiguity in the RFP. A solicitation ambiguity exists where two or more reasonable interpretations of the terms of the solicitation are possible. Here, the proposals’ format was addressed in the RFP’s proposal preparation instructions, where offerors were instructed that they must submit their proposals on CDs, that paper copies were not permitted, and that submission of proposals by email or facsimile was not authorized. GAO finds that the RFP required that subcontractors’ proposals, like the offerors’ own proposals, be submitted on CDs. Because Metters did not deliver its subcontractors’ proposals on CDs to the agency until after the specified closing time, the agency was reasonable in rejecting the proposal as late. The protest is denied.