In a January 2024 bid protest denied by the Government Accountability Office (“GAO”), an all-too familiar issue regarding allegedly late email bid submissions timeliness brought the split between GAO and the Court of Federal Claims (“COFC”) back into focus. The takeaway? COFC is the right place to protest when bid timeliness is in question, GAO is not.
Bid submission timeliness, especially e-mail and electronic bid submissions, regularly lead to protests. Remember that contractors are not helpless and can take steps to ensure they avoid these issues, including early submission and proactively communicating with the Contracting Officer (“CO”). But if a contractor does end up in a dispute over timeliness, it should be the default choice to raise the issue before COFC rather than GAO.
As I’ve written previously, GAO has repeatedly refused to reconsider its strict stance on the “Late is Late” rule. GAO’s position is that unless the bid submission hits the designated email inbox on-time, the contractor is late and ineligible for award. GAO argues that it does not matter whether the proposal was sent before the deadline, only whether it arrived in the Government’s inbox on time. This principle extends to scenarios outside of the contractor’s control where technical errors on the Government’s side impede the timely delivery of bids.
Happily, COFC takes a different approach to timeliness that is more favorable to contractors. See, e.g., eSimplicity, Inc. v. United States, 162 Fed. Cl. 372 (2022); Federal Acquisitions Service Team, LLC v. United States, 124 Fed. Cl. 690 (2016); Insight Systems Corp. v. United States, 110 Fed. Cl. 564 (2013).
The crux of the split between GAO and COFC centers on the “Government Control” exception to the “Late is Late” rule. This exception arises when a bid is sent via email before the deadline and is received by at least one government “installation” but encounters technical issues, causing delays or failure in reaching the CO’s inbox. In many cases COFC will consider these submissions as technically on-time and eligible for consideration, whereas GAO almost always finds them to be untimely.
The latest decision on this topic, Matter of: Guidehouse Inc., B-422115.2 (Jan. 19, 2024) continues GAO’s history, which I have discussed previously. See Matter of: Versa Integrated Solutions, Inc., B-420530 (Apr. 13, 2022). The 2022 case involved a contractor submitting prior to the deadline and getting “quarantined” by the Government’s server. Curiously, the protester in Versa stated in its protest that it knew GAO would deny its protest based on prior decisions but wanted GAO to change its mind. In an utterly predictable turn of events, GAO declined to do so.
In Guidehouse, the protester submitted its bid via multiple emails prior to the bid deadline. The Request for Quotations (“RFQ”) stated that if even one part of the quote was missing or late, the entire quote would be considered late. Guidehouse acted responsibly and requested confirmation of receipt for each of the six emails it sent two days in advance of the deadline. Unfortunately, the Government only confirmed receipt of four of the emails after the deadline. After investigating, GAO found that the Government’s malware software used a gateway scanner which apparently deleted two of the contractor’s emails.
GAO’s rationale for denying the protest is in line with its prior decisions, including the previously mentioned Versa decision and Matter of: Sea Box, Inc., B-291056 (Oct. 31, 2002). One notable development in Guidehouse is that the RFP did not include FAR 52.212-1(f)(2)(i)(A), (B) which forms the basis for the “Government Control” exception. Instead, the Government included a unique instruction section that did not provide for any exceptions to the “Late is Late” rule. This unique situation did not help the contractor’s case, but GAO explained that it would have denied the protest either way.
Contractors who take their Protest first to GAO and lose can get a second bite at the apple. Guidehouse could have followed in the footsteps of Insight Systems Corp. and filed a subsequent protest with COFC. In Insight, the contractor sent the email submission timely, and it was received by the Government’s first of two servers. Due to a technical processing error, the email was not forwarded to the second server and never reached the CO’s inbox. The choice to protest again even after failing at GAO provided Insight the result they were seeking: reconsideration of their bid.
COFC has consistently differed with GAO on the timeliness issue. See e.g., Federal Acquisitions Service Team, LLC v. United States, 124 Fed. Cl. 690 (2016); eSimplicity, Inc. v. United States, 162 Fed. Cl. 372 (2022). In these cases, despite bids being sent on time, technical glitches on the Government’s end prevented their timely delivery to the CO’s inbox. Likewise, in each case it is virtually certain that GAO would have denied the protest on the same facts.
Understanding the implications of the “Government Control” exception is crucial for both contractors and agencies involved in procurement processes. Indeed, it is not the only exception as I have discussed in previous posts. While contractors should take care to ensure timely submission and consider potential technical issues that may affect the delivery of their bids, once the Government has the email transmission, it is out of their control.
Key Takeaways:
- Take care in submitting your proposal to reduce technical issues and submit at least one day early prior to 5:00 p.m.
- Diligently follow-up on your submission to confirm that the Government has, in fact, received it.
- If things still go wrong, consider choosing the Court of Federal Claims when protesting e-mail submission timeliness issues. GAO’s position on this issue is clear and unfavorable.
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