By Alan Chvotkin
Don’t be Late – Or At Least Not Too Late
PSC EVP and Counsel
June 24, 2019
Companies often learn an expensive lesson when submitting a proposal to a federal agency: don’t miss the date and time for proposal delivery to the person and location specified in the solicitation. There are also strict timelines for other common procurement situations, including filing of protests at the Government Accountability Office and for claims under the Contract Disputes Act. Knowing those deadlines is essential to staying in the game. Several recent case decisions highlight these complex but all too common circumstances.
Timeliness issues arise most commonly in dealing with proposal submissions. Federal agencies always prescribe the exact date, time and location for the timely submission of vendor proposals on the cover page of the solicitation. There is no excuse for not knowing the due date and location, but there are numerous examples that highlight the challenge of complying with this sometimes not-so-simple requirement. For example, will the vendor be able to make a personal delivery (either through its own employees or through a delivery service) at the specified location and get through agency security in a timely manner? Will a “snail mail” delivery get to the contracting officer on time? If the agency requests proposals electronically, will the agency’s email system firewall allow the entire proposal to be completely “delivered” by the appointed time?
Nevertheless, there are dozens of cases that parse the “late is late” provisions of the Federal Acquisition Regulation (FAR) dealing with on-time proposal submissions. The FAR specifically provides for limited exceptions where an agency may accept and evaluate a proposal that misses the solicitation deadline, but these are narrowly focused and rarely applied.
But an April Government Accountability Office (GAO) decision
highlighted an important distinction between elements of technical acceptability of a proposal that must be met by the due date of the proposal and matters of responsibility of the offeror to receive an award that may be satisfied at any time prior to award. A protest was filed at GAO by Chags Health Information Technology LLC (B-413104.30 and B-413104.37; 4/11/19) challenging the NIH rejection of its proposal under the on-ramping under the CIO-SP3 Small Business contract for failing to provide an encryption password to unlock financial data that was part of the original timely submission. GAO found that NIH had stated in the solicitation that the required financial data was relevant only to determining an offeror’s responsibility for award. Thus, despite a disagreement between Chags and NIH as to whether the encryption password was included in the original proposal or only in an email subsequently submitted in response to a “clarification request,” GAO concluded that NIH erroneously excluded Chags’ proposal based on a “technical acceptability” assessment rather than considering it during the evaluation phase as a matter of award responsibility. Interestingly, all of Chags’ information was in the hands of NIH sixteen months prior to any on-ramp award decision. By concluding that the password was “timely” at NIH, GAO directed NIH to use the password to decrypt the financial information and then evaluate the entire proposal for award eligibility. However, in a footnote to the decision, GAO noted that “we do not, by this decision, conclude that there is a hard rule as to when agencies must accept information regarding responsibility.” The bottom line here is that, in some circumstances in proposal preparation and submission, you can be late—but don’t be too late.
But other common circumstances are not so forgiving. For example, while most protests are filed at GAO, GAO has very strict “timeliness” rules for the submission of protests. A challenge to the terms of the solicitation must be filed prior to the deadline for submitting new (or revised) proposals. (See CredoGov (B-414389.38;
5/31/19) .) In that same case, in a challenge to the agency’s decision to eliminate CredoGov from the competitive range, GAO reaffirmed its long-standing rules that a protest based on matters other than alleged solicitation improprieties must be filed not later than 10 calendar days after the protestor knew, or should have known, of the basis of the protest.
The Court of Federal Claims (CoFC) is similarly no more generous. The Contract Disputes Act (CDA) requires a party seeking relief on a government contract to file its claim within six years of when the claim accrues. There has been a lot of litigation over the meaning of the term “claim accrues.” In Kansas City Power & Light (15-348C
; 5/10/19), the CoFC addressed two uncommon situations under their contract with GSA for the sale of electricity—a “duty to defend” and a “duty to indemnify”—to determine when the “claim accrues” in order to apply that strict six-year CDA statute of limitations.
At both GAO and the CoFC, failure to adhere to the “late is late” rule governing their jurisdiction will preclude recovery. There is no excuse for not knowing and complying with the timeliness rules governing solicitation submission and challenges to agency action.