Bidding on government contracts is a stressful, high-stakes process. Contractors spend significant time and resources in crafting excellent proposals and missing deadlines almost always results in disqualification from the competition. Electronic bid submissions have the added complication of using technology that is not always reliable. My colleague Nick Solosky has previously discussed the Federal Acquisition Regulations (FAR) “late is late” rule. Nick explains that the Government Accountability Office (GAO) has consistently ruled that a proposal electronically received after the submission deadline cannot be accepted, even if the proposal was sent timely. However, disappointed bidders have multiple options for bringing bid protests, and that includes the Court of Federal Claims (COFC). COFC, in contrast to GAO, enumerates actionable exceptions to the “late is late” rule, particularly relating to electronic bid submissions. These include the (1) “government control” exception, (2) the “systemic failure” doctrine, and (3) “unanticipated events.” Each of these are discussed in detail below.
Exception 1: Government Control
The FAR itself articulates the “government control” exception to the “late is late” rule. This exception requires that the late proposal must (1) be received before award; (2) not unduly delay the acquisition; and (3) the record must contain 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. FAR 52.215-1(C)(3)(ii)(A)(2).
Setting aside some of the technical aspects, a protestor must prove that at least one government server received its proposal before the proposal deadline and that the submission was not over the size limit. Two key COFC cases extensively discuss the “government control” exception: Federal Acquisitions Service Team, LLC v. United States, 124 Fed. Cl. 690 (2016) and Insight Systems Corp. v. United States, 110 Fed. Cl. 564 (2013). The Court determined that the proposals, sent by email in both cases, reached the first government server. Although the bids were submitted on time, technical errors on the government’s’ side prevented the email from arriving in the Contracting Officer’s inbox.
In Federal Acquisitions, the bidder was notified six minutes after its submission that the first server rejected the email, allegedly because it was larger than the Solicitation limit. The Court found that the initial email was under the size limit in the Solicitation, but a technical issue with the government’s servers dramatically increased the size of the email, leading to the rejection.
The bidder in Federal Acquisitions initially took the protest to GAO, which differs with the COFC on whether the “government control” exception applies to electronic submissions like emails. After receiving a decision from GAO, the protestor brought the case to COFC. The Court held that because the submission was received by the first government server prior to the deadline, the “government control” exception applied.
While other exceptions apply, the “government control” exception is usually the first and best argument a protester should make at COFC.
Exception 2: Systemic Failure Doctrine
Another exception to the “late is late” rule is the “systemic failure” doctrine. This exception relies on the requirement that the government implements reasonable procedures to safeguard against technical issues preventing receipt of proposals. This exception applies where the loss of proposal is the result of a systemic failure resulting in “multiple” instances of lost information. One example from Syncon LLC v. US, 154 Fed. Cl. 442 (2021) showed multiple bidders encounter the same technical errors resulting in the rejection of their proposals. Therefore, if the protestor only has one instance of a systemic failure resulting in lost information, the Court may reject the claim.
One difficulty with this and other exceptions is how to determine whether or not to protest. In a “systemic failure” doctrine protest, it may be awkward, but contractors should consider how to get information from competitors about whether their bids were also rejected for similar reasons. Even if a competitor re-submitted timely after an initially rejected proposal, a protestor could still make a solid argument on the grounds that there was a “systemic failure.”
Exception 3: Unanticipated Event
Finally, an “unanticipated event” can be an exception to the “late is late” rule. FAR § 52.215-1(c)(3)(iv) states that “an emergency or unanticipated event” that, “interrupts normal Government processes. . . 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.” In other words, if the proposal cannot be received by the deadline because of agency’s internet outages or other unanticipated event, the deadline is extended by one work day after normal agency processes resume.
When protesting based on the “unanticipated event” doctrine, it is important for protestors to bring evidence that is more than a mere conjecture. For instance, in Syncon, the Court found that the proposal was not timely submitted because the protestor failed to establish that the government system was malfunctioning. The disappointed bidder claimed that unanticipated event must have occurred on the government’s server because the protestor did not experience any IT issues, and two other offerors also experienced delays uploading their proposals. The Court noted that this argument is not sufficient to overcome the “late is late” rule.
The failure to establish sufficient evidence is a concern for each of these exceptions. Ultimately, contractors need to present technical data to support their case and that almost always must come from the Government. Would-be protestors must be aware that even if they are correct that something went wrong on the government’s side of things, they must still find a way to prove it.
First, choice of forum matters. These exceptions are more likely to be successful in the COFC than in the GAO. Second, while COFC does take more liberal stance, these exceptions to the “late is late” rule are limited and strictly applied. Gathering sufficient evidence to overcome the rule is critical. One final consideration is that even a successful protest does not necessarily result in award of the contract. The Government merely must consider your proposal and could reject it because it is too expensive or does not represent the best value to the Agency.
I agree with Nick Solosky’s long-standing recommendation to submit proposals at least one full day early, when possible. However, Murphy’s law, “everything that can go wrong, will go wrong” means that contractors should be aware of the options available for protest.