PilieroMazza attorneys have seen a number of government contractor clients encounter the same problem: They timely emailed a proposal to a government agency, but, for reasons unknown, the proposal was delivered late or was never received by the Contracting Officer (“CO”). There, the CO normally enforces the Federal Acquisition Regulation’s (“FAR”) strict “Late is Late” policy and rejects the proposal. Fortunately, in certain circumstances, it is possible to employ the Government Control Exception to salvage allegedly late proposals; however, the Government Accountability Office (“GAO”) and the Court of Federal Claims (“COFC”) interpret that exception differently. Any government contractor whose timely emailed proposal is rejected due to the “Late is Late” policy, is encouraged to work with an experienced government contracts attorney who can help them overcome the rejection.
The Government Control Exception, found both at 48 C.F.R. § 52.212-1(f) and 48 C.F.R. § 52.215-1(c)(3)(ii)(A)(1)-(3), contain identical language, but one applies to offerors of commercial items and the other applies to offerors in competitive acquisitions, respectively. Essentially, they hold that a late proposal may be considered “if it is received before award is made,” and “the Contracting Officer determines that accepting the late offer would not unduly delay the acquisition; and—
(1) If it was transmitted through an electronic commerce method authorized by the solicitation, it was received at the initial point of entry to the Government infrastructure not later than 5:00 p.m. one working day prior to the date specified for receipt of offers; or
(2) There is 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 . . .”
48 C.F.R. § 52.215–1(c)(3)(ii)(A)(1)-(2); 48 C.F.R. § 52.212-1(f)(2)(i)(A)-(B). Put simply, the Government Control Exception applies if the “late” proposal: (1) is received before award is made; (2) will not unduly delay the acquisition; (3) was received by the government’s servers; and (4) was under the government's control prior to the deadline.
The GAO and the COFC disagree about whether exception A or B applies to emailed proposals. Unfortunately, the GAO holds that exception A’s “electronic commerce” reference contemplates emails, and thus, it would allegedly be redundant if exception B also contemplated emails. Hence, the GAO holds that only exception A applies to emailed proposals.
For example, let’s suppose that, for a procurement, proposals are due at 5:00 pm on Thursday, and an offeror emails its proposal at 12:01 am that morning, which is 17 hours early. But, then the government claims that it cannot find the email or the email is lost in their servers or the email is delivered to the CO after the deadline. Although that email was received by the government servers 17 hours early and in the government’s control immediately, the GAO would hold that the offeror has no recourse because the proposal email was not received by the government’s servers “one working day prior to the date specified for receipt of offerors.” Clearly, this is an exceedingly draconian result and there is no technological (or in my view rational) basis for such a rule yet it exists and offerors must be aware of it.
Dissimilar to the GAO, the COFC holds that both exceptions A and B apply to emailed proposals. Hence, in the above scenario, if it was determined that the government’s servers received the emailed proposal prior to the deadline, then the COFC would find the proposal timely (assuming, arguendo, that the CO was unable to prove accepting the proposal would unduly delay the procurement).
Also noteworthy, when faced with this problem, seek experienced counsel as soon as possible because the longer you wait, the more likely a CO will allege that accepting your proposal will unduly delay the procurement.
Clearly, this COFC/GAO discrepancy is problematic because the same facts would result in different results in the two different forums and will incentivize forum shopping. This is an example of why Congress should clarify this FAR exception so that both the GAO and COFC will be forced to interpret it in the same way.
Regardless, attorneys in PilieroMazza’s Government Contracts Group have substantial experience successfully arguing in favor of the COFC’s interpretation to persuade agencies to accept emailed proposals that factually align with the above hypothetical; however, each scenario is fact intensive and requires a personalized and thoughtful approach.