Email Proposal Deadlines and a New Year's Resolution
Oh, what a year 2020 has been, full of ups and downs and far too much time spent indoors. To that end, we hope that 2021 brings everyone good health, happiness, success, outdoor activity, and contract wins!
Indeed, as this year comes to an end, many of you will be setting goals and making resolutions from which to operate in the New Year. For our friends in the government contracting space, we offer a simple New Year's resolution for you to consider adding to your list.
Set a goal – company best practice – to email your proposals by 5:00pm one working day prior to the deadline set forth in a solicitation.
At least by 5:00pm one working day prior to the deadline! [1]
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Why?
Even if you miss your self-imposed deadline (i.e., last minute revisions, file size issues, computer problems, etc.), your proposal will likely not be late.
Moreover, and importantly, many government agencies use complex technology – such as, email gateways, malware servers, and other tech – to protect their networks from malicious content and bad actors.
In other words, this technology may cause email to be delayed or blocked from delivery. To be sure, contractors may also use technology or internet providers that can also cause email issues.
But, why does that matter?
A proposal is timely when it is received, not when it is sent.
Remember that.
A PROPOSAL IS TIMELY WHEN IT IS RECEIVED AT THE DESIGNATED PLACE PRIOR TO THE DEADLINE. [2]
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Examples…
A protester emailed its proposal (via multiple emails) about 1 hour before the proposal deadline. Due to technical issues, however, the proposal submissions were not received by the agency's servers until 2 hours after the deadline (3 hours after the protester emailed its proposal). GAO found that because the proposal was not delivered to the designated inbox prior to the deadline, and because no exception applied, the proposal was late. [3]
A protester emailed its proposal 6 minutes before the proposal deadline. Due to technology delays, the DoD email gateway received the proposal 4 minutes after the deadline. The proposal was finally delivered to the contracting specialist's inbox 4 minutes later (8 minutes after the deadline or 14 minutes after the protester emailed its proposal). GAO found that, despite the protester sending its proposal before the deadline, it was not received in contracting specialist’s inbox prior to the deadline. As a result, the proposal was late. [4]
A protester emailed its proposal about 35 minutes before to the proposal deadline and received a Microsoft Outlook delivery confirmation. Upon learning that the agency did not receive its proposal, the protester emailed its proposal again to the designated inbox and to other agency personnel (Outlook delivery confirmation). Unfortunately, the proposal never reached the designated inbox so it was not considered for award. Here, the proposal was not delivered to the designated inbox because, after the agency’s enterprise email security gateway server (EEMSG) scanned the email, it sent the proposal to an exchange email server that blocked it from being delivered to the designated inbox. GAO found that even though the proposal reached the EEMSG, the protester failed to show that it delivered its proposal to the designated inbox before the deadline. As a result, the proposal was late. [5]
But wait, how are all these decisions fair?
The "late is late” rule: proposals that are received after the deadline, generally, may not be considered.
As GAO puts it, the rule "alleviates confusion, ensures equal treatment of all offerors, and prevents one offeror from obtaining a competitive advantage that may accrue where an offeror is permitted to submit a proposal later than the deadline set for all competitors." [6]
So, remember...
A proposal is timely when it is received at the designated place prior to the deadline.
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Unfortunately, technology issues have sunk a number of proposal submissions (including others not listed above), so don't let it sink yours.
Contractors should therefore plan for email delays (or computer/file issues) and email your proposals at least by 5:00pm one working day prior to the deadline.
Happy Contracting and Happy New Year!
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[1] The FAR provides an "electronic commerce" exception where a proposal 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." See FAR 52.212-1(f)(2)(i)(A); see also FAR 52.215-1(c)(3)(ii)(A)(1). Notably, this is but one exception; the FAR, GAO decisions, and Court of Federal Claims decisions add additional nuance to the proposal deadline rule and exceptions. If you have any questions, contact an attorney.
[2] Unless an exception applies. See, e.g., supra note 1.
[6] See supra note 3 at 3 (citing Inland Serv. Corp., Inc., B-252947.4, Nov. 4, 1993, 93-2 CPD ¶ 266 at 3).
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