Email Proposal Deadlines: A New Year's Resolution for GovCons

Oh, what a year 2021 has been – we navigated challenging waters (CIO-SP4 and the contractor vaccine mandate) and did our best to stay healthy, happy, and relatively stress free throughout the process. To that end, we hope that 2022 brings everyone good health, happiness, success, more outdoor activity and conferences, and contract wins!

Indeed, as chapter 2021 closes and chapter 2022 begins, many of you will be setting goals and making resolutions from which to operate in the New Year. For our friends in the government contracting space, here's a simple New Year's resolution to add to your contracting playbook: for email proposal submissions, set a goal – company best practice – to email your proposals around 12:00pm one working day prior to the deadline set forth in a solicitation.

You got it, around 12:00pm one working day before the proposal deadline (note: if, under the circumstances, that goal is not feasible, contractors should still plan on submitting at least 4 hours in advance)! [1]

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Why? Even if you miss your self-imposed deadline (i.e., last minute revisions, file size issues, computer problems, etc.), your proposal will likely not be late. Moreover, and importantly, many government agencies use complex technology – such as, email gateways, malware servers, and other tech – to protect their networks from malicious content and bad actors.

In other words, this technology may cause email to be delayed or blocked from delivery. To be sure, contractors may also use technology or internet providers that can also cause email issues. But, why does that matter?

A proposal is timely when it is received, not when it is sent. Once more:

A PROPOSAL IS TIMELY WHEN IT IS RECEIVED AT THE DESIGNATED PLACE PRIOR TO THE DEADLINE. [2]

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Examples…

• A protester emailed its proposal (via multiple emails) about 1 hour before the proposal deadline. Due to technical issues, however, the proposal submissions were not received by the agency's servers until 2 hours after the deadline (3 hours after the protester emailed its proposal). GAO found that because the proposal was not delivered to the designated inbox prior to the deadline, and because no exception applied, the proposal was late. [3]
• A protester emailed its proposal 6 minutes before the proposal deadline. Due to technology delays, the DoD email gateway received the proposal 4 minutes after the deadline. The proposal was finally delivered to the contracting specialist's inbox 4 minutes later (8 minutes after the deadline or 14 minutes after the protester emailed its proposal). GAO found that, despite the protester sending its proposal before the deadline, it was not received in contracting specialist’s inbox prior to the deadline. As a result, the proposal was late. [4]
• A protester emailed its proposal about 35 minutes before to the proposal deadline and received a Microsoft Outlook delivery confirmation. Upon learning that the agency did not receive its proposal, the protester emailed its proposal again to the designated inbox and to other agency personnel (Outlook delivery confirmation). Unfortunately, the proposal never reached the designated inbox so it was not considered for award. Here, the proposal was not delivered to the designated inbox because, after the agency’s enterprise email security gateway server (EEMSG) scanned the email, it sent the proposal to an exchange email server that blocked it from being delivered to the designated inbox. GAO found that even though the proposal reached the EEMSG, the protester failed to show that it delivered its proposal to the designated inbox before the deadline. As a result, the proposal was late. [5]

But wait, how are all these decisions fair?

The "late is late" rule: proposals that are received after the deadline, generally, may not be considered.

As GAO puts it, the rule "alleviates confusion, ensures equal treatment of all offerors, and prevents one offeror from obtaining a competitive advantage that may accrue where an offeror is permitted to submit a proposal later than the deadline set for all competitors." [6]

So, remember...

A proposal is timely when it is received at the designated place prior to the deadline.

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Unfortunately, technology issues have sunk a number of proposal submissions (including others not listed above), so don't let it sink yours.

Contractors should therefore plan for email delays (or computer/file issues) and email your proposals by 5:00pm one working day before proposals are due (or at bare minimum, at least 4 hours).

Happy Contracting and Happy New Year!

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[1] The reason why contractors should adopt the policy of submitting electronic proposals around 12:00pm one working day in advance is because the FAR provides an "electronic commerce" exception where a proposal was "received at the initial point of entry to the Government infrastructure not later than 5:00 p.m. one working day prior to the date specified for receipt of offers." See FAR 52.212-1(f)(2)(i)(A); see also FAR 52.215-1(c)(3)(ii)(A)(1). Notably, this is but one exception; the FAR, GAO decisions, and Court of Federal Claims ("COFC") decisions add additional nuance to the proposal deadline rule. In that respect, while the GAO decisions above seem harsh, some COFC decisions appear to be more contractor-friendly when it comes to late proposals. See, e.g., Fed. Acquisition Servs. Team, LLC v. United States, 124 Fed. Cl. 690 (2016); Insight Sys. Corp. v. United States, 110 Fed. Cl. 564 (2013). Thus, given the differing approach between GAO and COFC, and other nuance related to COFC bid protests, contractors should contact an attorney if you have any questions.

[2] Unless an exception applies. See, e.g., supra note 1.

[3] Western Star Hospital Authority, Inc., B-414216.2 (May 18, 2017).

[4] Spanish Solutions Language Services, LLC, B-418191 (January 2, 2020).

[5] ManTech Advanced Systems International, Inc., B-414985 (October 20, 2017).

[6] See supra note 3 at 3 (citing Inland Serv. Corp., Inc., B-252947.4, Nov. 4, 1993, 93-2 CPD ? 266 at 3).

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DISCLAIMER:?This post is for informational purposes only and may be construed as attorney advertising in some jurisdictions.?The information provided above is not intended to be legal advice and should not be construed or relied upon as legal advice.?If you need legal advice, please contact an attorney.