Government Contractor Considerations on the ‘Late is Late’ Rule for Electronic Proposal Submissions

For practically twenty years, contractors relied on e mail to submit their proposal submissions to the Government. Regardless of the conveniences of recent know-how, potential offerors usually face points with the well timed supply of their digital proposals. Typically proposals are quarantined for containing macro information or rejected for exceeding file dimension limitations. Even when an offeror seeks to substantiate receipt of its proposal, there is no assure that these follow-up communications will attain the meant company consultant.

In a latest matter, GAO upheld the company rejection of a proposal as “late” regardless that the offeror’s hint logs confirmed well timed e mail transmissions to the company factors of contact and their appropriate e mail addresses as said in the solicitation. Sadly, whereas the company’s system obtained the proposal at its server, the proposal was instantly quarantined as a result of it contained a macro file.

Some businesses advise offerors of their system’s limitations and their explicit safety protocols of their solicitations. Nonetheless, not all solicitations present such warnings, and offerors who should not conscious of such safety protocols and different system limitations might fall sufferer to the admittedly harsh “late is late” rule, as mentioned under.

The quarantine of an digital proposal would seem to have the identical sensible impact as a hard-copy proposal that is not obtained by the designated company factors of contact on time due to mishandling at the preliminary level of entry to the company facility. Whether or not quarantined in a server or delayed by a gate guard, in each circumstances the proposal has handed from the offeror’s management to the Government’s management, so there is no actual threat of a compromise to the integrity of the proposal course of.

GAO has not seen it that approach, and has held {that a} “late” digital proposal might solely be accepted if it was submitted no later than 5:00 p.m. on the day earlier than the scheduled submission date. GAO doesn’t consider that proposals obtained at the Government’s server earlier than the due date and time (however not by the designated company factors of contact) might be accepted, not like a “late” bodily proposal that is solely “late” due to Government mishandling after well timed receipt at the preliminary level of entry to the Government facility.

Nonetheless, sure COFC Judges materially differ from GAO of their interpretations of the FAR in issues of the well timed submission of digital proposals. FAR 52.215-1(c)(3)(ii)(A) permits for the consideration of a late proposal if accepting the late provide wouldn’t unduly delay the acquisition and: (1) it was despatched electronically and obtained by the Government no later than 5:00 p.m. someday earlier than the proposal deadline; (2) acceptable proof establishes receipt at the preliminary level of entry at the Government set up, and the proposal was beneath the Government’s management earlier than the submission deadline; or (3) it was the solely proposal obtained. These three exceptions allowing a contracting officer to think about a late proposal are recognized, respectively, as (1) the Electronic Commerce exception, (2) the Government Management exception, and (3) the Solely Proposal exception.

GAO has held that the Government Management exception doesn’t apply to digital proposal submissions as a result of the FAR Council in drafting the related FAR provisions didn’t particularly apply the Government Management exception to digital proposals.

Sure COFC Judges, on the different hand, have taken the view that the Government Management exception could also be utilized to digital proposal submissions to the identical extent it applies to proposal submissions by non-electronic means. The courtroom locations the onus on the company as soon as a proposal reaches a Government server, thus shifting the threat of non-receipt by the designated company factors of contact from the offeror to the Government. Some argue that GAO ought to modify its place and permit the Government Management exception to use to these conditions the place, by means of no fault of the offeror, the proposal was “late” due to unknown safety protocols or dimension limitations affecting the company’s system and doubtlessly impairing the well timed submission of gives.

Certainly, the COFC’s – maybe extra considerate – evaluation is primarily based upon the premise that the development of know-how necessitates that when an offeror hits “Send,” the offeror shouldn’t be accountable for any subsequent technical issues with the supply or e-gateway of the Government workplace. The COFC’s holding means that the offeror wouldn’t be at fault when the offeror has no data of probably restrictive safety protocols or dimension limitations to the company’s system that heighten the threat of delay past the due date and time, or non-receipt altogether.

Key Takeaways

GAO’s current place that the Government Management exception can’t be utilized to digital proposals no matter the circumstances inflicting their alleged “lateness” signifies that offerors getting ready to submit an digital proposal ought to plan to take action earlier than 5:00 p.m. on the day earlier than proposals are due. We acknowledge that it is not the ordinary observe for offerors to submit digital proposals appreciably prematurely due to, amongst different points, fears that the integrity of their provide might one way or the other be compromised if submitted early.

Subsequently, offerors ought to strongly heed any quarantine protocols or file dimension limitations said in a solicitation and, if not said, elevating the matter with the Government by means of the customary Q/A procedures. In any other case, even the most well-crafted proposals threat elimination from competitors due to unknown quarantine insurance policies or file-size limitations which will have required further precautions from offerors.

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