The Federal Circuit just dismissed the Government’s “Late is Late” appeal on Dec. 16^th as moot, preserving the split between the Court of Federal Claims (COFC) and the Government Accountability Office (GAO) on the issue of timeliness.[1] My advice to protesters appealing late bid proposals remains the same: Always take your timeliness protests to COFC rather than GAO.

Recap: GAO says email bid proposals sent before the bid deadline and delayed by government technical issues are late. Meanwhile, COFC says these emails are on-time. This is a decades-long split that the Federal Acquisition Regulation (FAR) council inexplicably refuses to resolve. During oral arguments in this case, Hon. Judge Dyk pointed out that there is no reason for this uncertainty to exist. I agree.

My view: When a government server causes an error and delays or refuses to accept a timely sent bid proposal, that is outside of the contractor’s control. Therefore, the bid is timely and must be considered.

About two months ago I correctly predicted, based on oral arguments, that the Federal Circuit would dismiss the case as moot for reasons unrelated to timeliness. In other words, the Federal Circuit never considered the actual issue of timeliness. Instead, they said the case was academic and dismissed it. That is because after the first eSimplicity case in 2022, the Government re-solicited the work, eSimplicity won the contract and began performing. The Court’s decision means that contractors should still go to COFC instead of GAO on this issue.

The Government’s argument under this appeal was very shaky: essentially arguing that the government could continue with this protest because it might consider terminating eSimplicity if successful in its appeal. The Department of Justice (DOJ) argued that “[t]he Navy wants to exercise the option to terminate the contract” and “it very well may [terminate eSimplicity].” Keep in mind that this is work that eSimplicity won fair and square and has been performing for at least two years. Counsel for eSimplicity also pointed out that there were about 40 people who were under threat of losing their job, which by all accounts they were performing well. The Court was rightly skeptical of this legal maneuvering, which was DOJ’s only chance to maintain a live controversy. In my view, the DOJ postured in order to get a chance at reversing the well-established case law related to timeliness at the Court of Federal Claims.

This is also a reminder that GAO will absolutely not reconsider its strict stance on the “Late is Late” rule. I have written about this several times previously – most recently after Matter of: Guidehouse Inc., B-422115.2 (Jan. 19, 2024).

In Guidehouse, the protester submitted its bid via multiple emails prior to the bid deadline. Guidehouse sent its bid in six parts and responsibly requested confirmation of receipt for each of the six emails it sent two days in advance of the deadline. But the Government only confirmed receipt of four of the emails after the deadline. After investigating, GAO found that the Government’s malware software used a gateway scanner which apparently deleted two of the contractor’s emails.  

Following dismissal of the eSimplicity appeal, COFC’s approach to timeliness remains much more favorable to contractors.  See, e.g., eSimplicity, Inc. v. United States, 162 Fed. Cl. 372 (2022); Federal Acquisitions Service Team, LLC v. United States, 124 Fed. Cl. 690 (2016); Insight Systems Corp. v. United States, 110 Fed. Cl. 564 (2013).

Contractors can avoid these timeliness issues if they submit proposals well in advance of the deadline, and at least one day early prior to 5:00 p.m. Diligent follow-up with the Contracting Officer can also help. But I realize that contractors often end up filing close to the deadline. So, if things still go wrong, choose the Court of Federal Claims when protesting e-mail submission timeliness issues.

[1] eSimplicity, Inc. v. United States, No. 2023-1216, 2024 WL 5114142 (Fed. Cir. Dec. 16, 2024)