A protester recently lost an effort to get an agency to consider a late proposal arguing that it was emailed to the agency on the due date.
Even though the quote would have been less expensive than the awardee’s and this was a lowest-price technically-acceptable procurement, GAO denied the protest finding that the email was a few hours late and did not include the attached quotation.
In Utech Products Inc. d.b.a EndoSoft LLC, B-416915 (Dec. 27, 2018), EndoSoft LLC, a Schenectady, New York, company, protested the Department of the Army’s decision to not evaluate its proposal, claiming the proposal was timely submitted.
The Army sought proposals to provide an endoscopy documentation system. Proposals were due via email, according to the solicitation, by 10 a.m. Eastern Standard Time on September 19, 2018.
In its protest, EndoSoft claimed it did in fact email the contracting officer on September 12 with its proposal. It waited until October to hear back then reached out to the contracting officer—providing the quotation again via email—only to learn that the award had gone to another offeror at a higher price.
EndoSoft filed a protest on October 2, the same day it had learned of award, arguing that the Army unreasonably failed to evaluate the quotation that it emailed on the due date. It attached the email in question to its protest.
Meanwhile, the Army claimed it never received a September 12 email from EndoSoft at all. The Defense Information Systems Agency (“DISA”) provided server logs showing that EndoSoft had emailed the Army twice on September 11 seeking information, but nothing on September 12.
In its comments, EndoSoft provided a screen shot of the email stating it was sent, but did not provide the email itself. GAO asked for the email itself with attachment, at which point the protester apparently went silent.
Said GAO, “our Office requested that the protester submit the email with the attachment containing the quotation that it asserts was sent to the agency on September 12. The protester did not respond to our request.”
Because the Solicitation stated unequivocally that any proposal not received by the deadline would not be eligible for award, GAO said the agency could not consider it and denied the protest.
“It is a vendor’s responsibility,” GAO said, “when transmitting its quotation electronically, to ensure the delivery of its quotation to the proper place at the proper time.”
In fact, GAO said that because the solicitation said that late submissions would not be considered, the Army had no choice. “Since EndoSoft failed to establish that its quotation was submitted to the agency’s designated email address prior to the time set for the receipt of quotations,” GAO said, “EndoSoft has failed to meet its burden of showing that its quotation was timely delivered to the agency. Accordingly, the agency could not consider the quotation.”
The EndoSoft decision shows that GAO treats proposal deadlines strictly. In fact, GAO has demonstrated over and over again that late is late. Even where, as here, is less expensive than the awardee’s, GAO will not find an agency’s decision not to evaluate the proposal unreasonable—especially when the protester can’t prove it actually attached the proposal.
It also demonstrates that while email is a tremendous tool it is susceptible to human error. Often, emails thought sent are found languishing in a draft folder days later or found sent absent a key attachment. Contractors would be wise to ensure they have plenty of time to double and triple check email submissions.
That being said, contracting officers would also do well to consider human error. Sometimes, contracting officers have the discretion to accept a late proposal when it will not unduly delay the procurement or unfairly benefit one company. In circumstances where an attachment was obviously left off, there is room for such discretion–either by accepting the proposal (if allowed by the FAR under the circumstances), or reopening the submission process and allowing all bidders to submit final proposals by a common cut-off.
Doing so in this case may have saved the Army, and the taxpayers, some money.
