“Bidding on government contracts is a stressful, high-stakes process. Contractors spend significant time and resources in crafting excellent proposals and missing deadlines almost always results in disqualification from the competition. Electronic bid submissions have the added complication of using technology that is not always reliable. My colleague Nick Solosky has previously discussed the Federal Acquisition Regulations (FAR) ‘late is late’ rule. Nick explains that the Government Accountability Office (GAO) has consistently ruled that a proposal electronically received after the submission deadline cannot be accepted, even if the proposal was sent timely. However, disappointed bidders have multiple options for bringing bid protests, and that includes the Court of Federal Claims (COFC). COFC, in contrast to GAO, enumerates actionable exceptions to the ‘late is late’ rule, particularly relating to electronic bid submissions. These include the (1) ‘government control’ exception, (2) the ‘systemic failure’ doctrine, and (3) ‘unanticipated events.’ Each of these are discussed in detail below.
Exception 1: Government Control
The FAR itself articulates the ‘government control’ exception to the ‘late is late’ rule. This exception requires that the late proposal must (1) be received before award; (2) not unduly delay the acquisition; and (3) the record must contain 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. FAR 52.215-1(C)(3)(ii)(A)(2)…”
“In Federal Acquisitions, the bidder was notified six minutes after its submission that the first server rejected the email, allegedly because it was larger than the Solicitation limit. The Court found that the initial email was under the size limit in the Solicitation, but a technical issue with the government’s servers dramatically increased the size of the email, leading to the rejection.
The bidder in Federal Acquisitions initially took the protest to GAO, which differs with the COFC on whether the ‘government control’ exception applies to electronic submissions like emails. After receiving a decision from GAO, the protestor brought the case to COFC. The Court held that because the submission was received by the first government server prior to the deadline, the ‘government control’ exception applied…”
“Key Takeaways
First, choice of forum matters. These exceptions are more likely to be successful in the COFC than in the GAO. Second, while COFC does take more liberal stance, these exceptions to the ‘late is late’ rule are limited and strictly applied. Gathering sufficient evidence to overcome the rule is critical. One final consideration is that even a successful protest does not necessarily result in award of the contract. The Government merely must consider your proposal and could reject it because it is too expensive or does not represent the best value to the Agency…” Read the full article here.
Source: Bid Protests: Exceptions to the “Late is Late” Rule – By David Timm, March 8, 2022. The Federal Government Contracts & Procurement Blog, Fox Rothschild.
