Decided: January 31, 2022
Agency: Department of Commerce
Disposition: Protest Denied
Keywords: Timely proposal submission; Lost Proposals
This case highlights the importance of receiving follow up confirmation on proposal submissions. Government Contractors should consider this step a must for all bids. If a confirmation is not automatically sent, the offeror should act diligently to speak to the relevant parties to ensure a proposal was received and is being considered. According to GAO here, an agency’s email server blocking delivery of an offeror’s proposal, does not constitute the agency acting improperly. Rather, in situations like the one here, where a proposal is “lost” and award is already made, there is no remedy for the offeror. General Counsel services our clients with experienced legal services for similar bid protests but also the ongoing engagement essential to reducing the need to protest in the first place.
Summary of Facts
AttainX, Inc. protests the issuance of a task order to Reston Consulting Group, under request for quotations (RFQ) No. 1305M2- 21-Q-FKS6-0413, issued by the Department of Commerce, National Oceanic and Atmospheric Administration (NOAA), for information and data management services. NOAA issued the RFQ on May 5, 2021. The contract specialist at the time, Ms. X, emailed 12 companies, including AttainX and Reston, inviting them to submit quotations. All quotations were to be submitted by email directly to the contract specialist by May 27, at 2:00 p.m EST.
AttainX emailed its quotation to the address specified in the solicitation on May 27 at 12:10 p.m. and received a confirmation of delivery receipt with the following message: “Delivery to these recipients or groups is complete, but no delivery notification was sent by the destination server.” NOAA’s contract specialist received quotations from eight vendors by the closing date, but the AttainX quotation was not received at Ms. X’s email address.
While it was evaluating quotations, NOAA appointed Ms. Y as the contract specialist due to the pending departure of Ms. X from the agency. Ms. X’s email account was suspended on June 22. Unaware that Ms. X had left the agency, AttainX sent Ms. X a series of emails inquiring about the status of the procurement, including on August 16, August 17, August 24, and September 2. AttainX received automatic replies from the agency indicating that AttainX’s email was “undeliverable” and “noaa.gov suspects your message is spam and rejected it.”
On September 15, Ms. Y emailed Reston indicating that its quotation had been selected for award. On October 18, AttainX emailed Ms. Y asking about the status of the RFQ. Ms. Y advised AttainX that they had not received a quotation from the firm. AttainX filed this protest. In response to this protest, the agency attempted to ascertain what happened to AttainX’s May 27 email and found the email within the agency’s email archive system. The agency discovered that, instead of being delivered to the recipient’s email box, the email had been held in quarantine by the agency’s email system.
Basis of Protest
AttainX argues that it timely submitted its quotation to the email address specified in the solicitation and that the agency improperly failed to consider its quotation. The agency argues that the protest should be dismissed as untimely, and alternatively, even if the protest is timely, the protest is without merit since the agency never received AttainX’s quotation.
GAO stated that Bid Protest Regulations require that protests, other than those based on alleged solicitation improprieties, shall be filed not later than 10 days after the basis of protest was known, or should have been known. Additionally, protesters are required to diligently pursue all information that may give rise to protest grounds, but GAO resolves doubts regarding timeliness in favor of protesters.
GAO found that, here, it cannot conclude that the protester failed to diligently pursue this information. GAO noted that AttainX was not initially aware of a problem concerning the receipt of its quotation in May, since it received an automated delivery confirmation message indicating that “delivery to these recipients or groups is complete, but no delivery notification was sent by the destination server.” AttainX also pursued this matter beginning in August by repeatedly inquiring about the status of the procurement. Since the protester’s repeated efforts to learn information about the procurement were frustrated by internal staffing changes within the agency, GAO was “unwilling to conclude that AttainX failed to make a good faith effort to diligently pursue this information.” Additionally, since doubts regarding timeliness are resolved in favor of protesters, GAO concluded that it would not dismiss the protest as untimely.
AttainX next argues that since its protest was timely sent, the agency should now consider its quotation. The agency argues that this protest should be denied because the quotation was not received by the agency’s contracting personnel. GAO stated that it is an offeror’s responsibility to deliver its proposal or quotation to the proper place and the protester has the burden to show that it timely delivered its submission to the agency at the specified address.
GAO found that, here, the protester sent its quotation to the address specified in the solicitation, however, it was retained in the agency’s email server, so they were unaware of AttainX’s quotation before award. The agency later told AttainX that it had been having “issues with emails sometimes being quarantined,” but the record did now show that this was a known problem at the time the agency received quotations under the solicitation and there is no indication that other vendors for this procurement experienced similar problems. Thus, GAO determined there is no evidence to support a conclusion that this email was lost due to a systemic problem or failure with the agency’s systems.
GAO concluded that since “no discernable fault lies with either party, we find the circumstances presented by this case to be most closely analogous to those cases where an offer or quotation reaches the agency, but is misplaced and subsequently discovered by the agency after award.” GAO acknowledged that an offer or quotation can be lost or misplaced and, in such cases, GAO has concluded “that a protester is not entitled to relief absent evidence of a conscious or deliberate effort by contracting personnel to prevent selection of that firm or when the record demonstrates that the loss was not an isolated incident, but rather, was part of a systemic failure on behalf of the agency such that the procedures in place to receive and safeguard quotations cannot be considered reasonable.” GAO denied the protest on these grounds.
Our Government Contracts Practice Group has extensive experience in government contract law, helping clients solve their government contract problems relating to the award or performance of a federal government contract, including bid protests, contract claims, small business concerns, and teaming and subcontractor relations. If you need more guidance or information, contact Craig Lawless, Senior Counsel in our Government Contracts practice area at General Counsel, P.C., 703-266-1865.