GAO: Email Transmission Delay Sinks Contractor's Proposal
Does an agency email gateway strike again or is contractor-side transmission delay to blame? Either way, recent GAO bid protest decision highlights the need for government contractors to plan for transmission delays when submitting proposals via email.
As the protest of Spanish Solutions Language Services, LLC, B-418191, January 2, 2020, 2020 CPD ¶ ___ reiterates, a proposal is timely when it is received, not when it is sent (unless the late proposal exception applies).
Brief Timeline:
10:54 am – Protester emails proposal [1]
11:00 am – Proposal deadline
11:04 am – DoD email gateway receives protester's email [2]
11:08 am – Proposal arrives in contracting specialist's inbox
Unfortunately, because the protester's proposal was not received by the contracting specialist until eight minutes after the deadline, the proposal was ultimately considered late and thus ineligible for award (even though the agency initially evaluated the proposal as unacceptable). [3]
As GAO notes, "it is an offeror’s responsibility to deliver its proposal to the proper place at the proper time." [4] Moreover, GAO also stated that "proposals received after the submission deadline are late and cannot be accepted--except in certain exceptions not applicable here--when a solicitation contains the late submission provisions set forth in FAR provision 52.212-1(f)(2)(i)." [5]
For the late proposals exception under 52.212-1(f)(2)(i) to apply, the proposal must be received before award is made, and the Contracting Officer must determine that accepting the late proposal would not unduly delay the acquisition and:
(A) If it was transmitted through an electronic commerce method authorized by the solicitation, it was received at the initial point of entry to the Government infrastructure not later than 5:00 p.m. one working day prior to the date specified for receipt of offers; or
(B) There is acceptable evidence to establish that it 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; or
(C) If this solicitation is a request for proposals, it was the only proposal received.
Takeaway
To be considered timely, your proposal must be received at the designated place prior to the proposal deadline (unless an exception applies). Given that a number of agencies filter inbound email (malware/virus servers), it is possible that an emailed proposal will be delayed during transmission. Remember to account for these delays when submitting your proposals via email.
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[1] The protester provided an exhibit in its response to the agency's request for dismissal to prove it emailed its proposal at 10:54 am.
[2] Interestingly, there is no indication as to why or how the DoD email gateway received the protester's email at 11:04 am, or 10 minutes after the protester sent its email. Was it an agency- or contractor-side issue? Regardless, the 4 minute delay between the time the protester's email reached the DoD email gateway and the time it reached the contracting specialist's inbox (11:08 am) provides insight into the technology that agency's use that can delay emailed proposals.
[3] Notably, the agency initially evaluated the protester's proposal as technically unacceptable. During the protest, however, the agency argued that the agency's evaluation was "improper[]" because email records demonstrated that the proposal was late, rendering it ineligible for award.
[4] See FAR provision 52.212-1(f)(1); Washingtonian Coach Corp., B-413809, Dec. 28, 2016, 2016 CPD ¶ 378 at 4.
[5] See Washingtonian Coach Corp., supra; see also Robertson & Penn, Inc., dba Cusseta Laundry, B-417323, May 16, 2019, 2019 CPD ¶ 194 at 3 n.3 (finding no merit to the argument that the agency waived the submission deadline by not rejecting the late quotation or advising the firm of its determination that it was ineligible, when the solicitation contained FAR provision 52.212-1); see also M. Braun, Inc., B-298935.2, May 21, 2007, 2007 CPD ¶ 96 at 3-4 (sustaining a protest in which the agency considered a late quotation, even after discussions, when the solicitation contained FAR provision 52.212-1).
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