Everyone knows the old adage “late is late.” Every year, there are bid protests that illustrate this. If a proposal must be received via email by noon on Wednesday, it must be received via email by noon on Wednesday.
If you’re having problems with your server, it takes too long for the emailed proposal to go through, or your messenger is hit by a bus….sorry, Charlie. Thanks for playing.
But every once in a while, a protest comes along that gives a contractor a break.
On April 23, 2014, the GAO sustained a bid protest brought by a ICI Services, Inc (ICI). ICI had initially been awarded a task order under the Navy’s Seaport-e vehicle, but then had the award yanked when the Navy determined the proposal was “late.” ICI Services, Inc., B-409231-2.
In this case, the Navy had instructed offerors to submit their proposals via the Seaport-e portal; however, because the portal was inaccessible, ICI received instruction from the contract specialist to submit its proposal via email. ICI timely emailed its proposal.
After the Navy revoked its award, ICI filed a bid protest with the GAO, arguing that it was arbitrary and unreasonable for the Navy to deem its proposal “late.” The GAO agreed with ICI and sustained the protest.
The GAO noted that although a late proposal generally cannot be considered, “the policy underlying the late proposal rule is to ensure fair and equal competition and avoid confusion.” In this case, “[a]lthough the Navy argues that accepting ICI’s proposal ‘without evidence that [ICI] even attempted to upload its proposal . . . would have put the other offerors at a competitive disadvantage,’ the agency does not explain or show how other offerors would be disadvantaged, nor do we see any such possibility here.” Common sense prevailed!
In general, where a contractor is late in submitting a bid or submits it in an improper format, the contractor is generally out of luck even if its plight is sympathetic.
For example, in one bid protest, a contractor had called ahead to let an agency know a messenger was coming to drop off a proposal. The messenger got to the building in time but since the agency took its sweet time in admitting the messenger and escorting him to the proper department, the proposal was stamped “received” too late and a protest was unsuccessful. Technically, the protestor could have prevented its proposal from being late – its courier could have showed up earlier. Accordingly, no dice. Aerospace, Inc., B-403464.2 (October 6, 2010).
Sometimes, however, circumstances are truly extenuating. For instance, when the government shut down due to D.C.’s great blizzard of 2010, it was proper to extend a proposal due date until the government opened again. CFS-Inc., J.V., B-401809.2 (March 31, 2010).
The distinction is this – could the protestor have done anything differently? Or was the situation truly beyond its control?
In ICS’ case, the GAO ruled that ICI did all that it could, and it was even entitled to its protest costs. But think of all the stress and work that went into protesting the Navy’s decision.
Oh, the things we put ourselves through for the privilege of doing business with the federal government.
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