GAO: Late is Late, Even Where a Contractor's Proposal is Quarantined in an Agency Server

A recent U.S. Government Accountability Office ("GAO") bid protest decision provides a cautionary reminder on proposal submissions: an emailed proposal is considered timely when it is received at the designated inbox prior to the deadline. As we have seen this situation unfold time and time again, contractors should plan for email delays and submit proposals one working day in advance by 5:00pm (or, at minimum, at least four hours).

The protest of VERSA Integrated Solutions, Inc., B-420530, April 13, 2022, 2022 CPD ¶ __ involves an 8(a) set-aside procurement conducted under Federal Acquisition Regulation ("FAR") Parts 12 and 15. The solicitation advised that the agency would use a two-part evaluation scheme, included the late proposal clause at FAR 52.212-1, and instructed offerors to submit proposals for part one by 12:00pm ET on November 12, 2021. [1]

Prior to the proposal deadline, the agency received 20 proposals. VERSA's was not one of them. Following the agency's part one evaluation, on January 26, the agency sent advisory notifications to the 20 offerors. About two weeks later, VERSA contacted the agency for a status update and learned that the agency had not received its proposal. Next, VERSA sent the agency a server log, which showed that it had timely sent its part one proposal prior to the 12:00pm deadline on November 12. [2] On February 14, VERSA timely filed its protest.

Following its protest, the contracting officer was advised that the agency had received VERSA's part one proposal submission and that it had been quarantined by the agency's server. Specifically, VERSA's email was quarantined because it "contained macro files that 'generally contain malicious code or computer viruses' and are “harmful to IT environments.” As a result, VERSA's proposal was not delivered to the designated inbox prior to the 12:00pm deadline on November 12.

In its protest, VERSA argued that the agency’s rejection of its proposal as late was unreasonable because it submitted its proposal prior to the 12:00pm deadline and that the agency received – and was in control of – its proposal. However, GAO rejected VERSA's argument both because the agency did not timely receive VERSA's proposal at the designated place and because, under GAO's longstanding precedent, the government control exception does not apply electronic submissions. [3]

In denying the protest, GAO determined that the solicitation contained the late proposal rule at FAR 52.212-1, which provides that, unless an exception applies, proposals that are not received by the exact time specified would be “late” and would not be evaluated. [4] For electronic submissions, the exception allows a "late" proposal where accepting it would not unduly delay the acquisition and the proposal was received at the initial point of entry not later than 5:00pm one working day prior to the proposal deadline. Because VERSA's proposal was not received by 5:00pm one working day prior to the deadline, GAO concluded that the agency properly rejected the proposal.

Takeaway

This decision serves to remind contractors to submit electronic proposals as early as possible, and preferably by 5:00pm one working day in advance to trigger the exception under the FAR. Whether caused by email delay or by server quarantine, the rule remains the same at GAO: for electronic submissions, a proposal is timely when it is received in the designated inbox prior to the proposal deadline (unless an exception applies).

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[1] Part one related of the offeror’s submission of a corporate experience and technical approach concept paper; part two related to the submission of the offeror’s technical approach, management approach, past performance, and price. The solicitation's late proposal rule at FAR 52.212-1 provides:

(f)(2)(i) Any offer, modification, revision, or withdrawal of an offer received at the Government office designated in the solicitation after the exact time specified for receipt of offers is “late” and will not be considered unless it is received before award is made, the Contracting Officer determines that accepting the late offer 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.

[2] The agency's server received and quarantined VERSA's proposal at 11:32am on November 12, 2021.

[3] See supra note at 1 (exceptions); Sea Box, Inc., B-291056, Oct. 31, 2002, 2002 CPD ¶ 181. Notably, GAO's interpretation of the rule diverges from some U.S. Court of Federal Claims decisions, which appear to be more contractor-friendly when it comes to protests involving late proposals. See, e.g., Fed. Acquisition Servs. Team, LLC v. United States, 124 Fed. Cl. 690 (2016); Insight Sys. Corp. v. United States, 110 Fed. Cl. 564 (2013).

[4] Supra note 1.