In a victory for common sense, the GAO has held that a proposal that was in the agency’s possession before the due date was not “late,” even though the offeror emailed the proposal to the agency instead of submitting it through an online portal.
The agency’s attempt to reject the proposal was particularly egregious because the agency told the protester that the proposal could be submitted by email–then rejected the proposal when the protester did just that.
The GAO’s decision in ICI Services, Inc., B-409231.2 (Apr. 23, 2014) involved a Navy task order solicitation for engineering support services. The solicitation stated that offerors were required to submit their proposals through the Navy’s online Seaport-e portal. However, the solicitation stated that if the Seaport-e portal was inaccessible, offerors were to immediately notify the agency.
After receipt of initial proposals, the agency opened discussions and asked offerors to submit final proposal revisions. Because the Navy was having difficulty with its own Seaport-e portal, its email notice to offerors stated “[i]f you have any difficulties uploading your response in the Seaport-e portal, please email me the documentation.”
ICI Services, Inc. had difficulties with the Seaport-e portal. ICI contacted the Navy’s contract specialist, who agreed that ICI could submit its final proposal revision by email directly to the contract specialist, outside of the portal. ICI submitted its final proposal revision to the contract specialist by email before the closing time.
After initially awarding the task order to ICI, the Navy decided that ICI’s final proposal revision was late, and therefore, unacceptable. The Navy’s determination was based on its conclusion that ICI did not upload its final proposal revision into the Seaport-e system before the due date.
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.
The GAO wrote that “as relevant and dispositive here, the record shows that the Navy installation designated for receipt of proposals was in receipt of ICI’s revised proposal by the closing time for receipt of revised proposals.” The GAO wrote 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.” The GAO sustained ICI’s protest.
The old adage that “late is late” is well-known to government contractors. However, there is no good reason for an agency to state that an offeror can submit its proposal in a certain manner, then deem the proposal “late” when the offeror timely submits its proposal using that alternate manner. The GAO’s decision in ICI Services is a victory for common sense, and should be cheered by contractors.