The GSA e-Buy website may have improperly failed to preserve critical solicitation records, according to the U.S. Court of Federal Claims.
In Laboratory Corp. of America v. United States, No. 12-622C (2012), the court has asked the government to explain why it should not face sanctions for so-called “spoliation” of evidence, arising from the inability to access archived e-Buy materials. The court also suggested that the procuring agency might have used e-Buy to improperly attempt to modify a solicitation without issuing a formal amendment.
The Laboratory Corp. of America case is an ongoing bid protest involving a VA procurement. The solicitation stated that offers were due at 2:00 p.m. Central Standard Time, and indicated that quotations were to be submitted through the GSA’s e-Buy website. However, when Laboratory Corporation of America, or LCA, attended to submit its quotation at 1:03 p.m. CST, e-Buy refused to accept it, because e-Buy had been programmed to accept quotations only until 2:00 p.m. Eastern.
LCA filed a bid protest with the Court of Federal Claims, arguing that the VA had improperly refused to accept its quotation. The VA asked the court to grant summary judgment in the VA’s favor, arguing that the e-Buy website was part of the solicitation, and that e-Buy informed offerors that quotations were due at 2:00 p.m. Eastern–amending the formal solicitation provision using Central time.
That’s when things got interesting. Although the VA relied upon information supposedly found on e-Buy, it was unable to produce any supporting screen shots, and it soon became clear that none were available. According to a declaration submitted by a GSA official, GSA’s computer system “essentially purges, once a solicitation/request for proposal closes, the electronic information needed to retrieve or recreate a screen shot of the website.” Further, according to the GSA, a screen shot from e-Buy cannot be recreated using an internet archival feature because e-Buy is password protected.
In light of the GSA’s declaration, the court wrote, “if defendant is correct that the website became part of the solicitation, then it would appear that GSA’s computer system automatically discarded a portion of the solicitation.” The court wrote that it was “concerned that GSA has not maintained copies” of documents the government claimed to be part of the solicitation.
The court stated that the failure of the GSA to maintain the solicitation “raises questions as to whether spoliation sanctions of some form may be appropriate here.” Under the Federal Rules of Civil Procedure, spoliation (the destruction or significant alteration of evidence) can be punishable by a variety of sanctions. The court requested that LCA and the government provide briefs on the spoliation issue by October 29. I’ll keep you posted.
One final note: the court wrote that if, in fact, e-Buy was part of the solicitation, any modifications on e-Buy changing the terms and conditions of the solicitation needed to be accompanied by a formal amendment, as required by FAR 15.206. In this way, the court seemed to suggest (though it did not hold), that if e-Buy had in fact listed a 2:00 Eastern deadline, that deadline might have been ineffective for lack of a formal amendment.
The Laboratory Corp. of America case raises an issue that should be of interest to all contractors who use e-Buy. After all, disputes over solicitation language and amendments happen with some frequency–if e-Buy does not preserve solicitation information, will everyone just have to take the government’s word for what e-Buy said?