You submit a quotation after the given solicitation deadline. The solicitation includes a provision stating, in part, that late submissions will not be considered, but the Contracting Officer (CO) evaluates your quotation anyway. The CO goes with another contractor, and you submit a protest. After all, the CO evaluated your bid, you have an interest in the matter, right?
Per the GAO, you don’t, and your protest will be dismissed. D B Systems (DBS) learned this the hard way.
On July 2, 2020, the VA issued a solicitation for a service-disabled veteran-owned small business (SDVOSB) set-aside to procure elevator maintenance and repair services for a VA medical center. The solicitation included FAR provision 52.212-1, which expressly states that late submissions will not be considered (specifically, FAR 52.212-1(f)). DBS submitted a quotation after the deadline. Despite it being submitted late, the CO nonetheless evaluated the quotation, finding it ineligible as it did not include all required information. On January 8, 2021, the VA awarded the contract to another company.
DBS submitted a protest against the awardee, arguing it couldn’t meet the solicitation requirements. The VA responded that DBS’ quotation was late and therefore ineligible for award, even considering that the CO evaluated the quotation. This would mean DBS is not an interested party, and therefore could not challenge the VA’s evaluation or decision.
The GAO noted that it is the contractor’s responsibility to make sure their submissions are delivered to the proper place at the proper time. Pointing to the solicitation, the GAO continued:
Here, the (solicitation) incorporated FAR provision 52.212-1, which expressly limits the agency’s ability to consider late quotations to circumstances not present here. As this provision is incorporated into the solicitation and the agency received DBS’s complete quotation after the deadline, the agency is unable to consider the quotation. This is true notwithstanding the contracting officer’s mistaken belief that late quotations received before the beginning of the source selection process must be evaluated.
The GAO then explained that a protester must be an interested party to challenge an evaluation or decision by an agency on an award. Furthermore, “[a] protester is an interested party to challenge the evaluation of an awardee’s quotation only where there is a reasonable possibility that the Protester’s quotation would be in line for award if the protest were to be sustained.” In other words, unless you actually have a chance of being awarded, you don’t have a stake in the matter. The GAO then concluded that because DBS’s quotation was late, it was ineligible for consideration or award, and so it is not an interested party. The protest was dismissed.
It cannot be stressed enough: Take. Deadlines. Seriously. Even if nothing on the solicitation says that late submissions will not be considered, you should assume such submissions will be disregarded. Where a provision such as FAR 52.212-1 is present, all the more reason to make sure submissions are on time.
As the GAO mentioned, yes, there are exceptions in FAR 52.212-1, but these exceptions are very limited and should not be relied upon. They cover either situations where a contractor actually submitted on time but, due to some sort of error, the agency can’t find the submission (so really not even an exception) or where the solicitation is a request for proposals and a contractor’s submission was the only proposal received (not very common). Indeed, the links to other posts below shows that late proposal submission is an issue that GAO has considered many times, and it usually doesn’t work out well for the company that submitted late.
Preparing a protest and needing some guidance on what to do? Email us or give us a call at 785-200-8919.