This is not a unique story – but there is still a lesson for Federal contractors to learn.
A recent GAO decision considered an electronic proposal submitted by email just prior to the 4:00 p.m. deadline. Although the contractor beat the clock, the proposal did not arrive in the contracting officer’s electronic mailbox until about two hours later – after the deadline.
The Federal Acquisition Regulation (FAR) takes a hardline (but easy to follow) position on untimely proposal submissions. Late is Late. With some very limited exceptions, proposals received in the designated government office after the exact time specified are late and will not be considered.
The contractor’s argument to GAO is a familiar one – surely, a contractor that hits “send” on an electronic proposal can rely on that transmission. After all, the proposal is out of its hands and there was no indication of an error or electronic bounce-back. Not so, says GAO.
After a lengthy back and forth between the contractor and the government over whose system was responsible for the delivery delay, the GAO ruled that it does not matter. The FAR places the burden on the contractor to ensure that the electronic proposal has sufficient time to make its way through any filters or email traffic. Specifically, FAR 15.208(a)(1) provides that a late proposal can still be timely if it is “transmitted through an electronic commerce method authorized by the solicitation,” and “received at the initial point of entry to the Government infrastructure” not later than 5:00 p.m. one working day prior to the deadline for the receipt of proposals.
In other words, if you electronically submit your proposal one day early, you can get off the hook if a government transmission problem delays its arrival in the contracting officer’s mailbox.
While it may seem one-sided to shift the burden for a successful transmission away from the government, that is nothing new for experienced government contractors. In fact, in this case, it may even provide a benefit.
I am a longtime advocate of contractors submitting proposals a day early. It solves lots of last minute logistical problems. While we see many “late is late” problems for contractors that submit proposals at the 11th hour, I have yet to see a case where a contractor was unable to resolve a transmission problem over the course of 24 hours.
It is not always realistic, but getting your proposal teed up a day early is worth the effort.