Email Isn’t Instant: GAO Dismisses Case Where Proposal was Four Minutes Late

By 2020, most of us have gotten used to almost immediate means of digital communication. We expect emails to reach their destination at lightning-fast speeds—but this isn’t always the case. Relying on this expectation can have devastating effects, as it did for a protester in one recent GAO case.

In Spanish Solutions Language Services, LLC, B-418191 (Comp. Gen. Jan. 2, 2020), the Protester sought to submit a proposal for providing Arabic, French, and Russian translation services for a Department of Defense strategic planning seminar. Proposals were due by 11:00 am on September 23, 2019.

The Request for Proposals also included FAR 52.212-1. In particular, subsection (f)(2)(i) of this provision explains that any offer received after the deadline included in the solicitation will be considered late. In most cases, this means the late proposal won’t be considered for award, but the provision contains a few exceptions to the rule.

Generally, the Contracting Officer must decide that accepting any late offers would “not unduly delay the acquisition” and that one of three additional conditions is met.

First, if a proposal is “transmitted through an electronic commerce method authorized by the solicitation” (usually email or another online procurement system) and 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” it may be considered for award. In essence, for this exception the proposal must have made its way to some part of an agency’s digital communication system at least one weekday before the deadline.

Second, if there is “acceptable evidence” that the proposal 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” it may also be considered for award.

Finally, if the late proposal is the only proposal received, it may be considered for award as well.

In this case, the Protester was required to submit its proposal via email, which it did at 10:54 AM on the due date, just six minutes shy of the deadline. Though the email was sent with (a little) time to spare, this wasn’t enough to make it to the final destination by the time required. DoD’s email gateways didn’t receive the email until 11:04 and it didn’t reach the Contracting Officer’s inbox until 11:08. Because it failed to receive the email by the stroke of 11, DoD deemed the proposal late and refused to consider it for awards.

GAO agreed with DoD’s decision, concurring that the Protester’s proposal didn’t fall under any of FAR 52.212-1’s exceptions. Because the “proposal was late and therefore ineligible for award, [Protester was] not an interested party to challenge the agency’s subsequent evaluation and award decision”, so GAO dismissed the case.

Overall, this case serves as a stark reminder: as quick as internet transmissions are, sometimes the tubes get clogged. We here at Koprince Law know how important it is to get things filed on time (as we’ve discussed here, here, here and here, for example). If you have government contract questions and a tight deadline, give us a call! We’re here to help!