Our firm experienced a strange email outage yesterday: I could receive incoming email messages through my Outlook account, but anything I tried to send bounced back. After several bounce backs, I began emailing clients and other contacts from a gmail account (if you were on the receiving end, my apologies for the temporary lack of a professional email address, but it’s better than ignoring you, right?)
All this is to say that I can sympathize with McKesson Technologies, which experienced technical difficulties (as well as an unfortunate spelling problem) when trying to submit a proposal by email. Although the agency awarded McKesson the contract anyway, a competitor filed a GAO bid protest, and that was the end of McKesson’s award.
The GAO’s decision in Philips Healthcare Informatics, B-405382.2 et al. (May 14, 2012), which was recently released to the public, involved a VA solicitation for a picture archiving and communications system. The solicitation established the proposal deadline as noon on December 2, 2011.
McKesson attempted to submit its final proposal revision by email on December 2. However, according to McKesson, it had difficulty getting a portion of its FPR to send as an attachment to its email. In addition, an error apparently related to an “uncommon spelling of the contracting officer’s name” resulted in problems sending the proposal. The VA received McKesson’s proposal more than an hour late, at 1:04 p.m.
Even though McKesson missed the deadline, the VA awarded it the contract. Philips Healthcare Informatics, an unsuccessful competitor, filed a GAO bid protest. Philips alleged, in part, that the award was improper because McKesson had not submitted its proposal by the noon deadline.
In response, the VA argued that it was permitted to accept the late proposal under FAR 52.212-1(f)(2), which provides that the government may accept a late proposal if the acceptance would not unduly delay the acquisition, and one of three other criteria is met. The VA also argued that it could validly accept the late proposal under the same FAR provision because the late proposal was a modification of an otherwise successful proposal that made its terms more favorable to the government.
The GAO rejected the VA’s arguments. It held that the VA had not shown–or even argued–that any of the other three criteria called for in FAR 52.212-1(f)(2) applied. In addition, McKesson’s proposal was not a modification of an “otherwise successful proposal” because McKesson had not already been identified as the successful offeror before submitting the late proposal. In fact, without the late proposal, McKesson never would have been awarded the contract in the first place. The GAO sustained Philips’ bid protest.
In today’s high-tech world, technology snafus occur more often than any of us would like. Although I sympathize with McKesson’s email struggles, McKesson should have anticipated the possibility of technical problems and avoided trying to email its proposal at the last minute. If the attachment wasn’t going through, McKesson should have had a backup plan–like my gmail account–to get the proposal in the agency’s hands before the deadline.
As the Philips Healthcare Informatics GAO decision demonstrates, technical submission problems can sink proposals. Wise contractors will plan for the worst.