Federal government contractors are probably familiar with the government’s “late is late” rule, with respect to RFP responses, bid protests, etc. But does that rule apply when the company’s emailed RFP response is rejected by a government server because the email exceeded an undisclosed size limitation for email attachments?
On December 28, 2016, the Government Accountability Office (GAO) found that the rule applied.
The GAO concluded that it was the company’s responsibility to “ensure that an electronically submitted proposal is received by—not just submitted to—the appropriate agency email address prior to the time set for closing.” In re Washington Coach Corp., File B-41380-9, Dec. 28, 2016.
On September 8, 2016, the Department of Veterans Affairs issued an RFP for executive driver transportation services in the National Capital Region and neighboring areas. The RFP required electronic responses and directed that those responses be sent to two specified email addresses by no later than 2:00 PM on September 16, 2016.
The company sent its email RFP response at 1:19 on September 16, but did not receive any acknowledgement of receipt. The company called the contract specialist at 1:55—5 minutes before deadline—and again at 2:01, 2:05, and 2:19, attempting to confirm receipt. About a half-hour after deadline, the two Veterans Affairs designated individuals received emails from the company requesting confirmation of receipt of the RFP response.
The individuals checked with their IT Help Desk, which responded that there were 8 emails from the company on September 16 that exceeded the 10 MB size limit. Those emails did not reach the Local Exchange level but were rejected at the Trusted Internet Connection Gateways due to their size. The VA informed the company that the VA had not received the RFP response by the deadline and therefore would not consider the company’s response. The VA had received four other companies’ responses by the deadline.
As described above, the GAO determined that the company’s proposal was late, and therefore denied its protest.
“Late is late” and email
Federal regulations have long made it the responsibility of the sender to deliver the RFP response, bid protest, or other document to the designated government personnel by no later than the time specified. The relevant regulation in the VA matter contains three exceptions to that general rule that can be relevant to electronic document deliveries:
(2) (i) Any offer, modification, revision, or withdrawal of an offer received at the Government office designated in the solicitation after the exact time specified for receipt of offers is “late” and will not be considered unless it is received before award is made, the Contracting Officer determines that accepting the late offer would not unduly delay the acquisition, and—
(A) If it was transmitted through an electronic commerce method authorized by the solicitation, it 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; or
(B) There is 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; or
* * * *
(4) If an emergency or unanticipated event interrupts normal Government processes so that offers cannot be received at the Government office designated for receipt of offers by the exact time specified in the solicitation, and urgent Government requirements preclude amendment of the solicitation or other notice of an extension of the closing date, the time specified for receipt of offers 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.
(Federal Acquisition Regulation 52.212-1(f).) The regulation is nicknamed the “late is late” rule.
Although subsection (2)(A) is specifically directed to electronic communications, it is the exception least used currently. The Court of Federal Claims explained in Watterson Construction Co.. v. United States, 98 Fed. Cl. 84 (Mar. 29, 2011) the reason for its unpopularity: the exception was directed to batch computing. Today’s computers transmit data almost instantaneously, rather than saving files to send in batches once a day.
Instead, the most commonly used exception is 2(B), relating to the document being within government control. With respect to hard-copy documents, this exception could apply if, for example, the RFP response was by 5:00 PM to be delivered to John Smith at government agency ABC. As a non-governmental employee, however, you could only deliver it to the front desk of the government agency at 4:55—that should be “under the Government’s control prior to the time set for receipt of offers.” With respect to electronic documents, exception 2(B) has had mixed results over the years:
- In 2011, the Court of Federal Claims ruled that a proposal sent one hour prior to deadline and received by the first for four Army Corps servers, but was prevented from reaching the designated Contracting Officer’s email box due to an unexpected “mail storm” that delayed emails within the Army network, was within the government’s control. Therefore, the proposal was not “late.” The court also found in dicta that this situation could qualify for the “emergency or unanticipated event” exception quoted in subsection (4) above. (Watterson Construction Company v. United States, 98-Fed. Cl. 84 (Mar. 29, 2011).)
- In 2012, the Court of Federal Claims found that an RFP specifying the electronic format as “Microsoft Office 2003 or PDF only” did not exclude files that were compressed using Zip technology. The company compressed its response using Zip in order to meet the stated 5 MB limit in the RFP. The company submitted the Zip files eight hours in advance of deadline, but the Contract Specialist sent an email to the company stating that Zip files could not be accepted. As a result, the company divided the documents into 80 files, not all of which arrived by deadline. The court found that the use of Zipped files was common and would not have changed the format of the files from Microsoft Office or PDF. The court also noted that the Army had never published its policy restricting emails of Zipped files. Therefore, the court ruled, the Army’s decision rejecting the RFP response was “quintessentially arbitrary and capricious.” (Guzar Mirbachakot Transportation v. United States, 104 Fed. Cl. 53 (Mar. 29, 2012).)
- In 2013, the Court of Federal Claims ruled that the U.S. Agency for International Development had control over electronic responses to an RFQ when one or more of the internal servers that USAID’s contractors used in processing the agency’s email were malfunctioning, The company had sent its response almost 90 minutes prior to deadline. The court added:
“This is not to gainsay that a contractor which waits until the last moment before emailing its proposal should benefit from this exception. Rather, the court merely holds that, in the case of an electronic delivery, the Government Control exception applies where the electronic proposal is received by a government server (or comparable computer) and is under the agency’s control prior to the deadline.”
(Insight Systems Corp. v. United States, 110 Fed. Cl. 564 (May 6, 2013) (citing Watterson).)
- In 2014, the Small Business Administration’s Office of Hearings and Appeals rejected a size appeal as late. In this case, the Air Force performed a search of its computers, and found no evidence of any email from the company. Therefore, the Office ruled, there was no government control. (Size Appeal of KLN Manufacturing LLC, SBA No. SIZ-5631 (Dec. 31, 2014) (2014 WL 10536994).)
- In January of 2016, the GAO denied a protest from a company relating to a Department of Homeland Security RFQ. The company sent its email response five minutes before deadline to the designated email address and also to the government’s e-Buy system, which was not designated in the RFQ but was where the RFQ was posted. The email to the correct address reached the Edge level of security but did not get through the firewall to the DHS servers. The email sent to the e-Buy system was received prior to deadline. The GAO found that the record did not establish which communications from the company were actually blocked. Therefore, the GAO ruled, the record showed that the agency never received the company’s quotation prior to deadline. (Advanced Decisions Vectors, Inc., File No. B-412307 (Jan. 11, 2016).)
- In February of 2015, the Court of Federal Claims upheld a protest by a company that submitted a bid to the U.S. Special Operations Command (SOCOM). The bid was submitted approximately four and a half hours prior to deadline and, at 18 MB, was less than the 20 MB maximum specified in the RFP. When the email reached the government’s Defense Information System Agency server for security screening, that screening apparently added more than 2 MB, causing the SOCOM server to reject the proposal as too large. (The company was not the only bidder whose proposal was rejected for this reason—apparently 6 others were affected, although 15 were successfully received.) The court held that the company’s proposal was received by the first server designated by the government and therefore, the “government control” exception applied. In a footnote, the court found it unnecessary to consider the company’s alternative argument that the “unanticipated event” exception applied. (Federal Acquisition Services Team, LLC v. United States, No. 15-78C (Feb. 16, 2016).)
In light of the foregoing, any government contractor filing electronic documents with the government may wish to consider some or all of the following actions:
- Send any document more than one hour prior to the deadline.
- Divide the response into multiple parts, to avoid size limitations.
- Send the email “return receipt requested” or with another form of “read receipt” or acknowledgement, if possible.
- If an acknowledgement of receipt is not received fairly quickly, contact the designated contract officer via phone or email to confirm receipt, in advance of the deadline.