Extreme Weather Didn’t Excuse Late Proposal

With winter weather descending on much of the country, it is all the more important for contractors to ensure that their proposals are submitted with time to spare.

In a recent bid protest decision, the Court of Federal Claims held that extreme weather at an offeror’s location did not excuse the offeror’s failure to deliver a timely proposal because there was no interruption of “normal government processes” at the government location designated to receive proposals.

The Court’s decision in Global Military Marketing, Inc. v. The United States, No. 14-622C (Sept. 29, 2014), involved a DeCA solicitation for the supply of fresh pork products. The solicitation instructed that proposals deemed untimely would not be considered and that “[d]elays caused by commercial means such as airlines, express carriers such as Federal Express, United Parcel Service, etc or municipal difficulties such as black-outs, are not excusable.” Offerors were expressly instructed to “[e]nsure enough time is allowed for the proposal to arrive on time.”After a series of amendments, the proposal deadline was extended to April 30, 2014, at 3:00 p.m.

Global tendered its proposal to Federal Express on April 29, 2014. However, “extreme weather” hit Pensacola, Florida involving “intense rain of over 20 inches in 24 hours, widespread and damaging floods destroyed numerous major roads and bridges in the area.”  This extreme weather caused severe “damage to infrastructure and residential and commercial buidlings, and temporary closure of the Pensacola International Airport.”

Because of the extreme weather, FedEx routed the package by ground to Mobile, Alabama.  However, the weather in Mobile was not much better. The National Weather Service issued a flash flood watch for Mobile in the early morning of April 29, 2014 through the morning of April 30, 2014. “According to the National Weather Service’s Weather Forecast Office for Mobile/Pensacola, a ‘historic rainfall event’ developed on April 29, 2014, that produced ‘widespread flooding,’ ‘sinkholes,’ and ‘record rainfall amounts’ at the Mobile Regional Airport and Pensacola Regional Airport reporting sites.” President Obama declared a disaster in Alabama, according to a FEMA news release dated May 2, 2014.

Due to the extreme weather, Global’s employees were not able to reach its offices until 1:00 p.m. Once they arrived, they realized that Global’s proposal would not be delivered before the deadline. Global made alternate arrangements with a Kinko’s in Virginia to print, prepare, and hand-deliver the proposal to the DeCA in Fort Lee, Virginia. The hand-delivered proposal arrived at 3:40 p.m. on April 30, 2014, forty minutes after the deadline. DeCA refused to accept Global’s proposal.

Global filed a protest with the Court, challenging DeCA’s refusal to accept the proposal.  Global relied on FAR 52.212-1(f)(4) , which specifies that a proposal deadline may be extended if “an emergency or unanticipated event interrupts normal Government process so that offers cannot be received at the Government office designated for receipt of offers by the exact time specified in the solicitation . . ..”  Global argue that the FAA’s closure of the Pensacola airport (and similar restrictions in Mobile) constituted an interruption of normal government processes.

Citing a previous decision involving FAR 52.212-1(f)(4), the Court wrote that in order for the emergency exception to apply, “normal Government processes must be interrupted at the agency’s location, not the bidders.”  In this case, “no emergency or unanticipated event interrupted normal Government processes at the site designated for receiving proposals in Fort Lee, Virginia.” Because DeCA was “open and able to receive offers ‘at the required time and location,'” Global was not entitled to consideration of its proposal under FAR 52.212-1(f)(4).

When a contractor intends to submit a proposal via common carrier, it is a good idea to keep an eye on the weather forecast.  As the Global Military Marketing case demonstrates, even if severe weather hits the contractor’s area, the agency may reject a late proposal so long as normal government operations were not interrupted at the agency’s location.

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