“Late is Late” Rule for Proposals has Limits

Two offerors, Insight Systems Corp. (“Insight”) and Centerscope Technologies, Inc. (“Centerscope”) electronically submitted quotations in response to a USAID solicitation. The USAID’s computer server malfunctioned and failed to forward on the quotations internally within USAID. Consequently, the contracting officer did not receive the quotations in her email inbox by the submission deadline and pronounced the quotations late. After USAID awarded the contract to a third company, Centerscope and Insight protested the award to the U.S. Court of Federal Claims (COFC).

The Government’s position was that “late is late”, and it was therefore irrelevant that the submission delay occurred as a result of the Government’s computer malfunction. This “late filing” rule makes it an offeror’s responsibility to ensure that the proposal is timely delivered. The protesters argued, however, that the “Government control” exception to the late filing rule applied. The “Government control” exception would have the contracting officer accept proposals received after the submission deadline if (1) the award has not yet been made, (2) the contracting officer determines it would not unduly delay the acquisition, (3) the proposal was received at the Government installation designated for receipt of offers, and (4) the proposal was under the Government’s control prior to the submission deadline. The Government argued that this exception does not apply to electronic submissions.

The COFC disagreed with the Government: “Contrary to defendant’s claim, the plain meaning of the ‘Government control’ exception does not exclude from its coverage electronic communications.” The Court explained that the Government “receives” the proposals or quotations when they are accepted by the first Government computer server — irrespective of the fact that the first server failed to forward it along to the second server in the email system. The Court noted that if it accepted the Government’s position, it would deny to offerors who submit their proposals electronically the same protection that is afforded to offerors who submit their proposals in hard copy. The Court held that the Government’s rejection of the proposals as untimely was arbitrary, capricious, an abuse of discretion, and contrary to law. Insight Systems Corp. and Centerscope Technologies, Inc. v. The United States, Nos. 12-863C and 12-883C (Fed. Cl., May 6, 2013).

 

Practice Tip: If your electronic proposal is deemed late by the Government, your may yet be able to obtain relief in a protest if your proposal reached the Government “gateway” before the submission deadline.

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