Submitting a proposal in the correct manner and on time are two of the most elemental aspects of any response to a solicitation. After all, if you don’t submit the proposal, there is zero chance that the agency will review your proposal. Unfortunately, every so often there are hiccups in the submission process that cause delays. And, as one disappointed offeror found out, in the vast majority of cases these delays will be held against the offeror and not attributed to the agency.
The solicitation in the case of ICS Nett, Inc. called for offerors to submit their proposals by 5:00 p.m. via the Procurement Integrated Enterprise Environment (PIEE) Solicitation Module, a system used by the Department of Defense to securely receive responses from offerors. The PIEE Solicitation Module requires offerors to “upload documents into the system, enter a PIN number, and request a One-Time Password (OTP) that the system automatically generates and emails to the proposal manager.” The OTP is automatically emailed to the proposal manager once they have uploaded all proposal documents and clicked the signature button which indicates they are ready to transmit their proposal. Each OTP is valid for 15 minutes but will become invalid if the offeror requests an additional OTP. Proposals are not considered submitted via the PIEE Solicitation Module until the offeror submits both the PIN and the OTP. The PIEE system maintains user logs that show the exact time that offerors are sent the OTP.
ICS Nett experienced difficulties when submitting its proposal that caused the proposal to not be submitted until shortly after the 5:00 p.m. submission deadline. Due to the errors, ICS Nett contacted the contracting officer, who requested that ICS Nett send them an explanation and any error messages received. ICS Nett promptly did so but the agency still deemed that the proposal submission was late and determined that it would not consider ICS Nett’s proposal.
ICS Nett was notified that it was excluded from consideration due to its proposal being untimely. Subsequently, ICS Nett protested the agency’s decision to exclude it from competition. ICS Nett asserted that it experienced technical difficulties, consisting of “persistent technical issues with the [OTP] system from different networks and locations under the Government’s control” when submitting its proposal. Additionally, ICS Nett stated that it received multiple error messages that caused the untimely submission.
ICS Nett protested its exclusion from competition because the solicitation incorporated FAR 52.215-1, Instructions to Offerors–Competitive Acquisition, which provides that:
Any proposal, modification, or revision received at the Government office designated in the solicitation after the exact time specified for receipt of offers is “late” and will not be considered unless it is received before award is made, 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 proposals; 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; or
(3) It is the only proposal received.
FAR clause 52.215-1(c)(3)(ii)(A).
Therefore, ICS Nett argued, it had provided evidence to the contracting officer to establish that its proposal was received and under the agency’s control prior to the submission deadline, as shown by proposal attachments having been uploaded to the PIEE Solicitation Module. The submission delay was a system issue, and the proposal should be considered.
Unfortunately for ICS Nett, its interpretation of FAR 52.215-1 was misplaced. The PIEE system’s user logs showed that ICS Nett received its first OTP at 4:58:11 p.m. on the submission deadline date, the second at 4:58:37 p.m., and the third at 5:01:08 p.m. ICS Nett used the third OTP to submit its proposal at 5:02:18 p.m., two minutes and eighteen seconds past the submission deadline of 5:00 p.m.
FAR 52.215-1(c)(3)(ii)(A) prohibits an agency from accepting a late proposal submitted electronically unless: (1) The contracting officer determines accepting the proposal will not unduly delay the acquisition; AND (2) The agency received the proposal at the initial point of entry not later than 5:00 p.m. one working day prior to the date specified for receipt of proposals.
Here, ICS Nett did not upload its proposal to the PIEE system and receive its first OTP until two minutes before the submission deadline, as opposed to 5:00 p.m. one working day prior to the date specified for receipt of proposals. As a result, the contracting officer was not required to consider IC Nett’s proposal. In fact, the agency was prohibited from considering the proposal.
Further, the contracting officer noted that the screenshots received from ICS Nett all contained an OTP and that none contained the word “error.” Additionally, the agency received 54 timely proposals and there were no communications to the service desk regarding errors. Finally, as GAO has repeatedly emphasized, “it is an offeror’s responsibility to submit its proposal sufficiently in advance of the time set for receipt of proposals to ensure proper delivery of the proposal and timely receipt by the agency.” As such, the agency properly excluded ICS Nett from consideration.
This decision serves as another warning to all contractors that it is in their best interests not to wait until the last minute, or the last three minutes as occurred here, to submit their proposals and give yourself plenty of time when submitting proposals so you don’t end up in a similar situation.
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