How many times have you forgotten to include an attachment in an email? For many of us, it is not an uncommon occurrence.
In the case of one unfortunate contractor, a forgotten email attachment led to the rejection of its proposal–and the GAO upheld the agency’s decision.
The GAO’s bid protest decision in JV Derichebourg-BMAR & Associates, LLC, B-408777 (Nov. 20, 2013) involved a Navy solicitation for custodial and maintenance services at the Navy’s support activity in Gricignano, Italy. The solicitation instructed offerors that proposals must be submitted by 3:00 p.m., Central European Time, on July 8, 2013.
On July 8, JV Derichebourg-BMAR & Associates, LLC attempted to submit its proposal in two separate email messages. The first email message contained JVDB’s technical proposal. The second email message stated that the price proposal, joint venture documents, and line item schedules were attached. However, no attachments were included.
On July 10, JVDB resent its second email, which included the missing attachments. But because the email was received after the July 8 closing date, the Navy deemed it untimely. On July 11, the Navy informed JVDB that its proposal had been rejected as incomplete.
JVDB filed an agency-level protest, contending that the Navy’s email system had stripped the attachments from its system. Alternatively, JVDB argued that when the contracting office received the email without the attachments, it should have alerted JVDB so that JVDB could have timely resent the email.
The Navy checked with its computer services provider, which confirmed that although JVDB’s first email had included an attachment, the second had not. Because there was no evidence that the Navy’s server had stripped the attachments, the Navy denied this ground of protest. The Navy also denied JVDB’s alternate basis of protest, explaining that its personnel were not required to open the emails until the proposal deadline had passed.
JVDB then filed a GAO bid protest. JVDB abandoned its argument regarding the Navy’s servers, and argued only that it was unreasonable for the Navy’s personnel not to have reviewed the email on July 8 and notified JVDB of the missing attachments.
The GAO disagreed. It wrote that “JVDB has cited no law, regulation, or decision by this office–nor are we aware of any–in support of the proposition that agency personnel have a duty to review e-mailed offers for completeness prior to the proposal closing date and to notify offerors of any missing sections.” The GAO continued, “[u]ltimately, the primary cause of JVDB’s late proposal submission was the protester’s failure to attach its price proposal when it e-mailed its proposal to the agency, not the agency’s failure to alert the protester to this error on the date proposals were due.” The GAO denied the protest.
The GAO’s decision in the JVDB protest is unforgiving–but not surprising. It is a longstanding rule of government contracts that an offeror bears the burden of ensuring that its proposal is timely received by the procuring agency. In the electronic age, this burden includes ensuring that proposals submitted by email are sent with the correct attachments.
Update January 31, 2014: Jaime Gracia of Seville Government Consulting has started an ongoing LinkedIn discussion on this case, with 54 comments to date. Jaime’s discussion is well worth checking out.