Both GAO and the federal agencies take proposal deadlines with the utmost seriousness. We have discussed a few other examples of late proposals being denied by GAO before. Now, we have another one. This time, the protester put forth the argument that its lateness was not its fault. Rather, it was caused by issues with the agency’s proposal receipt system. Unfortunately for the protester, GAO did not accept this argument. Here, we will go into how it arrived at that decision.
In NAG Marine, B-422899 (Comp. Gen. Dec. 12, 2024), the Naval Warfare Center (Navy) issued a solicitation on July 1, 2024, for engineering and technical services for designing and delivering Repair Service Consoles. Proposals were due by 3:00 p.m. Eastern Time on August 26, 2024. Proposals were to be submitted through DOD Safe, the Department of Defense’s document delivery system. With that, the solicitation noted: “An offer uploaded (“Dropped-Off”) to DoD SAFE is considered to be timely when this automatic system-generated notification email is received by the designated Contracting Officer prior to the due date/time set for receipt of offers.” In other words, a proposal would not be considered submitted until the CO receives this notification email.
Now, the solicitation did also contain FAR 52.215-1. That clause notes the following:
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…[t]here 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…
If an emergency or unanticipated event interrupts normal Government processes so that proposals cannot be received at the office designated for receipt of proposals by the exact time specified in the solicitation, and urgent Government requirements preclude amendment of the solicitation, the time specified for receipt of proposals will be deemed to be extended to the same time of day specified in the solicitation on the first work day on which normal Government processes resume.
The protester, NAG Marine, attempted to submit its proposal in two parts. The CO received the notification email for the first part at 3:01 PM EST. At 3:05 PM, NAG Marine emailed the CO to explain they had started the process 30 minutes earlier, but kept getting error messages. Nonetheless, the CO responded that the proposal was late since the notification email came in after 3:00 PM EST. NAG Marine protested, arguing that the proposal was in the Navy’s control before the deadline and, alternatively, that system issues were the reason the proposal was late.
GAO rejected both arguments. First, with regards to the argument that the proposal was in the government’s control, GAO noted that “the government control exception does not apply to electronic submissions.” That issue was fairly straightforward (we note that the Court of Federal Claims has sometimes come to a different result, but GAO has been steadfast in this holding). The second argument by NAG Marine, that system issues caused the proposal to be late, required a more in-depth response.
GAO observed that the agency did a little investigating into the claimed system issues. The agency first went to the DISA help desk, which could see whether DOD Safe was properly operating at the time in question. The help desk found the servers were all working properly at that time. The Navy also contacted DOD Safe’s Special Services Line of Business to see if DOD Safe was not working in some manner. This division of DOD Safe responded that there were no issues from 1:00 PM to 4:00 PM on August 26, 2024.
As such, GAO stated that this was insufficient to excuse the late proposal. It was certainly possible that NAG Marine had encountered a glitch, but a single contractor having an issue with the system was not enough to be considered an interruption of “normal Government processes.” As it explained: “A finding by our Office of a systemic failure of an online government portal requires more than occasional malfunctioning of the system.” As such, GAO denied the protest.
This is a hard lesson, no doubt. It may seem unfair that NAG Marine was prevented from submitting its proposal by a glitch and that wasn’t enough to excuse it. Of course, the problem there is that, unless it’s something where the government knows its servers are down or that a systemic issue exists, it is exceedingly difficult, if not impossible, to verify such a claim. The key thing to take away from this: Do not wait until the last moment. You don’t know what issues you might run into. The earlier you attempt submission, the better chance that you’ll get your submission in.
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