Federal Contracts - The Late Proposal Rule Needs Updates to Reflect New Electronic Environment

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For decades, proponents of the Late Proposal Rule (‘‘the rule’’) have attempted to justify its harsh and rigid application by proclaiming that it alleviates confusion, ensures equal treatment and helps to maintain the integrity of the competitive procurement system. A recent decision at the United States Court of Federal Claims, however, demonstrates that the rule is not well-structured to assess today’s electronic proposal submissions.1 Fundamental principles in this rule, such as when a proposal is ‘‘received,’’ is under the government’s ‘‘control,’’ or has been delayed due to an ‘‘unanticipated event,’’ have all been convoluted by firewalls, servers, security certificates and electronic mailbox limitations. Moreover, the factual inquiries of where, when, why and which electronic proposal submissions were disrupted cannot be easily resolved by contracting officers, the Government Accountability Office or the courts. It is time for the Federal Acquisition Regulation Council to reconsider the rule and alleviate the growing confusion on how or if the Late Proposal Rule can be fairly applied to today’s electronic proposal submissions.

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DISCLAIMER: Because of the generality of this update, the information provided herein may not be applicable in all situations and should not be acted upon without specific legal advice based on particular situations.

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