The Protest is in the Mail: GAO and COFC Differences Regarding Treatment of Late Bid Proposals

This post was written by Leslie A. Monahan.

What happens when a bid proposal is sent via e-mail prior to the submission deadline but not by the proper party until after the submission deadline has passed? Turns out, the answer depends on whether the Government Accountability Office (“GAO”) or the Court of Federal Claims (“COFC”) is reviewing the matter.

A government contractor dealing with a late bid may still have its bid considered by the contracting officer, even if not received on the submission deadline, if it meets one of the three exceptions listed under FAR 52.215-4(c)(3)(ii)(A). The “Electronic Commerce” exception applies if the proposal was submitted electronically and “received at the initial point of entry to the Government infrastructure” by 5:00 pm the day prior to the submission deadline. The “Government Control” exception applies when there is “acceptable evidence” to establish that the offeror’s e-mail proposal “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.” The “Only Proposal” exception applies if the late bid is the only proposal received.

When determining bid protest for late submissions, GAO has consistently held that the “Government Control” exception does not apply to e-mail proposals. In Matter of: Sea Box, Inc. (PDF), a government contractor submitted its proposal by e-mail 11 minutes before the deadline. However, it took several minutes for the proposal to be transmitted from the original point of entry to the final electronic destination. When the email finally reached the intended recipient, it was past the deadline. GAO states since electronic delivery methods already had the “Electronic Commerce” exception, it would not make the “Government Control” exception broad enough to include electronic transmittals and provide two alternative means to determine whether late electronic transmitted proposals may be accepted.

However, the Court of Federal Claim recently reached an explicitly different result than GAO. In Watterson Construction Company V. United States (PDF), a bidder’s proposal arrived four minutes late to the Contracting Officer’s email inbox due to an unexplained "mail storm" at the Army Corps of Engineers e-mail server. When notified that its bid was deemed “ineligible for award” due because it was late, the bidder filed a protest. Unlike the GAO, the COFC held that the “Government Control” exception applies to electronic deliveries. So, if a contractor previously thought it was out-of-luck under GAO precedent, it may still be able to save its proposal at the COFC.

A government contractor dealing with a late bid may still have its bid considered by the contracting officer, even if not received on the submission deadline, if it meets one of the three exceptions listed under FAR 52.215-4(c)(3)(ii)(A). The “Electronic Commerce” exception applies if the proposal was submitted electronically and “received at the initial point of entry to the Government infrastructure” by 5:00 pm the day prior to the submission deadline. The “Government Control” exception applies when there is “acceptable evidence” to establish that the offeror’s e-mail proposal “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.” The “Only Proposal” exception applies if the late bid is the only proposal received.

When determining bid protest for late submissions, GAO has consistently held that the “Government Control” exception does not apply to e-mail proposals. In Matter of: Sea Box, Inc. (PDF), a government contractor submitted its proposal by e-mail 11 minutes before the deadline. However, it took several minutes for the proposal to be transmitted from the original point of entry to the final electronic destination. When the email finally reached the intended recipient, it was past the deadline. GAO states since electronic delivery methods already had the “Electronic Commerce” exception, it would not make the “Government Control” exception broad enough to include electronic transmittals and provide two alternative means to determine whether late electronic transmitted proposals may be accepted.

However, the Court of Federal Claim recently reached an explicitly different result than GAO. In Watterson Construction Company V. United States (PDF), a bidder’s proposal arrived four minutes late to the Contracting Officer’s email inbox due to an unexplained "mail storm" at the Army Corps of Engineers e-mail server. When notified that its bid was deemed “ineligible for award” due because it was late, the bidder filed a protest. Unlike the GAO, the COFC held that the “Government Control” exception applies to electronic deliveries. So, if a contractor previously thought it was out-of-luck under GAO precedent, it may still be able to save its proposal at the COFC.
 

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