An offeror’s proposal was properly rejected as late because the proposal exceeded the agency’s email file size limit.
In a recent bid protest decision highlighting, the GAO held that a small business’s proposal was late because the emails transmitting the proposal exceeded 10 MB–even though the solicitation didn’t mention a file size limit.
The GAO’s decision in Washington Coach Corporation, B-413809 (Dec. 28, 2016) involved a VA solicitation for executive driver transportation services. The solicitation was apparently classified as an acquisition of commercial items, and contained FAR clause 52.212-1 (Instructions to Offerors–Commercial Items).
The solicitation required that proposals be submitted by email to the Contracting Officer and Contracting Specialist. The solicitation did not mention any limit on the sizes of files that could be emailed to the agency. Proposals were due on September 16, 2016 at 2:00 p.m.
On September 16 at 1:19 p.m., Washington Coach Corporation attempted to send its proposal by email to the two VA email addresses. WCC’s email apparently exceeded 10 MB in size. WCC’s emails were not received by the VA.
At 1:55 p.m., WCC called the VA in an attempt to confirm receipt of the proposal. WCC received a voicemail message. After the 2:00 deadline, WCC made three subsequent attempts to call the VA. WCC also sent emails to the Contracting Officer and Contracting Specialist requesting confirmation that the proposal had been received.
The Contracting Officer and Contracting Specialist received WCC’s request for confirmation, and forwarded them to the VA’s IT department to determine whether a proposal had been received from WCC. After several days, the IT department concluded that the emails had been sent, but had not been received “at the Local Exchange Level” because they “exceeded the size limit which is allowed by VA Policy,” that is, because they exceeded 10 MB.
The VA determined that WCC’s proposal was late because it had not been received before the proposal deadline. The VA also determined that none of the exceptions set forth in FAR 52.212-1 applied to WCC’s circumstance. The VA declined to evaluate WCC’s proposal.
WCC filed a GAO bid protest challenging the VA’s decision. WCC argued that it submitted its proposal to the correct email addresses identified in the solicitation before the 2:00 deadline. WCC also pointed out that the solicitation did not identify the 10 MB file size limitation.
The GAO wrote that “ it is an offeror’s responsibility to delivery its proposal to the proper place at the proper time.” Proposals received after the exact time specified are deemed late, and ordinarily cannot be considered. GAO explained, “[w]hile the rule may seem harsh, it alleviates confusion, ensures equal treatment of all offerors, and prevents one offeror from obtaining a competitive advantage” by submitting a proposal later than other offerors.
In keeping with these general principles, “ we view it as an offeror’s responsibility, when transmitting its proposal electronically, to ensure the proposal’s timely delivery by transmitting the proposal sufficiently in advance of the time set for receipt of proposals to allow for timely receipt by the agency.” In that regard, “it is an offeror’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.”
The GAO noted that FAR 52.212-1(f), which was incorporated in the solicitation, does provide an important exception under which electronically-submitted proposals may be considered even if they would otherwise be deemed late. The exception applies where the Contracting Officer determines that accepting the late proposal would not unduly delay the acquisition, and the 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.”
Unfortunately for WCC, the exception didn’t apply because WCC’s proposal “was not received at the initial point of entry by 5:00 p.m. the day before proposals were due . . ..” Instead, WCC submitted its proposal about 40 minutes before the final deadline.
The GAO denied WCC’s protest.
The Washington Coach Corporation case is a cautionary tale for contractors. As the GAO’s decision demonstrates, an agency may be able to reject as “late” an electronically submitted proposal if the file size is too large–even if the solicitation didn’t identify any size limits. In an age where proposals are increasingly being submitted by electronic means, it’s important for contractors to be aware of this “harsh” rule.
Of course, WCC’s story might have had a happy ending had the company taken measures to prevent the potential file size problem. For one, WCC could have checked with the VA during the proposal stage to determine whether there were any file size limits. WCC also could have submitted its proposal a day earlier. As the GAO’s decision demonstrates, for commercial item solicitations containing FAR 52.212-1, the agency can accept an otherwise “late” electronically-submitted proposal, but only if the proposal was submitted the prior working day (or earlier).
WCC, like many offerors, waited until the last minute–or close to it, anyway–to submit its proposal. By waiting until so close to the deadline, WCC not only decreased its odds of reaching the Contracting Officer and Contracting Specialist to confirm receipt of its proposal before the deadline, but essentially waived the late proposal exception provided by FAR 52.212-1(f).