In a post earlier this year, I discussed a significant split between the Court of Federal Claims (COFC) and the Government Accountability Office (GAO). GAO has long held that email bid submissions, which do not arrive on time in the Contracting Officer’s (CO) inbox will not be considered for award. This includes situations like the “government control” exception where a bid is sent by email before the deadline and received by at least one government server but encounters technical errors and is either delayed past the bid deadline or never arrives. In that case, COFC would likely find that the bid submission was technically on–time and should be considered by the agency, while GAO would come to the opposite conclusion. See Federal Acquisitions Service Team, LLC v. United States, 124 Fed. Cl. 690 (2016); Insight Systems Corp. v. United States, 110 Fed. Cl. 564 (2013).
In a very recent 2022 decision, GAO reaffirmed its stance that proposals electronically received after the submission deadline are untimely, even if the proposal was sent early and within the government’s control. In Matter of: Versa Integrated Sols., Inc., B-420530 (Apr. 13, 2022) there were two proposal deadlines. The first was in November 2021. After receiving the first submission, the agency would advise offerors whether they should submit a second proposal at a later date.
Here, the protestor submitted the email proposal prior to the deadline, but the designated email address never received the submission. Several weeks later the protestor checked with the government requesting an update. The protestor responded to the agency by providing trace logs from its server proving that the email had, in fact, left its control ahead of the bid deadline. The agency later investigated and found that the email had been received and was immediately “quarantined” by the government server prior to the deadline.
This protest is a perfect illustration of where you would win in one forum and lose in another. In its decision, the protestor acknowledged that it was aware of GAO’s previous decisions denying electronically filed submissions within the government’s control. However, the protester apparently sought to use the protest to modify GAO’s view going forward. Unsurprisingly, GAO declined to do so. Indeed, it is difficult to understand why the protestor thought that GAO would suddenly change its perspective after decades of consistent holdings. This position has been held since at least 2002. See Sea Box, Inc., B-291056 (Oct. 31, 2002).
GAO took the opportunity again to explain its belief that the Federal Acquisition Regulations (FAR) part 52.212-1(f)(2)(i)(A) would be rendered a “nullity” if it ruled otherwise. The logic of GAO’s decision holds this position because the FAR has a provision permitting a late proposal “only if it was received at the initial point of entry to the government infrastructure no later than 5:00 p.m. the preceding working day.” While COFC (and I) don’t concur with this interpretation, GAO is entitled to hold it and it will continue to cost protestors money unless the FAR council clarifies the language sufficiently.
As always, there are several advantages and disadvantages you should discuss with counsel prior to filing a protest. It is difficult to parse out why the protestor decided to try to change GAO’s mind on this issue. Regardless, knowledge of GAO and COFC’s interpretation of the FAR can mean the difference between wasting thousands of dollars on a doomed protest and succeeding in having your proposal considered. My advice continues to be somewhat inconvenient: File your proposals before 5:00 p.m. the day before the deadline. However, should you find yourself in a situation where that is impossible, consider carefully where you should file your bid protest.
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