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jonmjohnson

USCOFC Ruling on Late Proposals

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Looks like the US Court of Federal Claims agrees that the language found in FAR is a bit silly regarding late submissions. Once proposals reach an agency server they are now under "government control." Not sure if I am articulating the nuance of the ruling, but that strikes me as its sense. Vern...you may have to rework that case study in your class now. As always, wondering what your thoughts are concerning this ruling:

http://www.uscfc.uscourts.gov/sites/default/files/ALLEGRA.INSIGHT050613.pdf

JJ

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For those who haven't read it, the decision is Insight Systems Corp. and Centerscope Technologies, Inc. v. U.S., COFC Nos. 12-863C and 12-883C, May 6, 2013. It is about the proper interpretation of the late proposal rule, which in this case appears in FAR 52.212-1(f). The same rule appears in FAR 15. 208 and 52.215-1( c)(3).

The issue in the case was whether the so-called "Government Control" exception applies to late emailed proposals. The GAO has decided in three decisions since 2002 that it does not. Its first such decision was Sea Box, Inc., GAO B-291056, 2002 CPD para. 181. The court has now decided that the exception does apply to emails in two decisions out of three since 2004. It decided that it did not apply in a 2004 decision, then decided that it did in a 2011 decision. Each of its three decisions was made by a different judge (Horn, then Braden, and now Allegra).

On the basis of the established principles of statutory interpretation, I think the GAO's interpretation is correct and the court's is wrong. The court's current interpretation violates the "whole text" principle. The court has based its interpretation upon the "plain meaning" of a single subordinate clause in a long sentence. It's clear to me that the court is fed up with the late proposal rule. It thus appears to have decided what would be a fair outcome in the case and developed reasoning that would support that outcome.

However, I think it's clear that all such protests filed by attorneys in the future for firms whose proposals were rejected as late will go to the COFC and that the COFC will decide that the "Government Control" exception does apply to late emailed proposals, and thus I think that is how COs should interpret and apply the rule. I also think that the court will decide that the Government has received an emailed proposal when it reaches the government's email server, even if it has not reached the CO's email inbox on his or her desktop. I do not know how the GAO will react to the court's decision. My guess is that they will stick to their position and let the protests go to the court. The FAR councils could easily clear things up with a simple FAR amendment that any literate person could write in a matter of moments, but it seems that they will not do it.

The interesting thing about the Insight decision is that it appears that the protesters' quotes did not reach the entry point to the government's internal IT system until after the deadline. It reached an outside Google Postini server before the deadline, but not the government's internal system. (Google owns the Postini system and uses it to provide a service to paying subscribers.) The Google server could not transmit the email to the government's internal servers because the government's servers had malfunctioned. Thus, the proposal was late and did not meet the conditions of the Government Control exception, because the Google server is not a government "installation" (even you think that the government's server was) and because possession by Google did not constitute being "under the government's control." I'm astonished that this point apparently was not made in the case and discussed by the court.

The other interesting thing about the Insight decision is that the solicitation was an RFQ for placement of an order against a GSA FSS contract, and the late proposal rule does not apply to such acquisitions. The agency could and did adopt the rule for the acquisition, but I wonder why it chose to do so.

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Mr. E,

Google was a contractor for the Agency.

They provided certain IT services, and furnished hardware to support providing those services.

The Agency effectively required anyone emailing them to go through the Google servers providing that service to the Agency.

Do you feel the government has a duty to deal fairly and honestly with the public ?

If so, then I can't follow your argument.

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I feel that the government has a duty to deal fairly and honestly with the public.

I regret that you cannot understand what I wrote.

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Mr. E,

Google was a contractor for the Agency.

They provided certain IT services, and furnished hardware to support providing those services.

The Agency effectively required anyone emailing them to go through the Google servers providing that service to the Agency.

Do you feel the government has a duty to deal fairly and honestly with the public ?

If so, then I can't follow your argument.

There is a difference between what you consider to be fair and what laws and regulations say.

With regards to the court case, it is blatently obvious here that the COFC is using a good amount of leeway when interpreting the clause. word for word? These guys were late. The e-mails, while sent before the closing deadline, did not reach the initial point of entry to the Government infrastructure no later than 5:00pm one day prior to the date specified for receipt. Using common sense and how todays technology works? Sure, we could accept them. But, we don't get to bend laws when we want to, do we?

Vern touched on it in his post, but I'll point you to the change that needs to be made. In 52.212-1(f)(2)(i)(A), the clause designates rules for electronic commerce acceptance and 52.212-1(f)(2)(i)(B) designates rules for acceptance presumably for hand delivery (specifying received at the Government installation AND under Government control). (f)(2)(i)(A) and (B) need to be updated and clarified to keep up with the times.

So, again, read Vern's 2nd to last paragraph. It is pretty cut and dry why the contracting officer considered them late, and was right to do so.

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There is a difference between what you consider to be fair and what laws and regulations say.

With regards to the court case, it is blatently obvious here that the COFC is using a good amount of leeway when interpreting the clause. word for word? These guys were late. The e-mails, while sent before the closing deadline, did not reach the initial point of entry to the Government infrastructure no later than 5:00pm one day prior to the date specified for receipt. Using common sense and how todays technology works? Sure, we could accept them. But, we don't get to bend laws when we want to, do we?

Vern touched on it in his post, but I'll point you to the change that needs to be made. In 52.212-1(f)(2)(i)(A), the clause designates rules for electronic commerce acceptance and 52.212-1(f)(2)(i)( B) designates rules for acceptance presumably for hand delivery (specifying received at the Government installation AND under Government control). (f)(2)(i)(A) and ( B) need to be updated and clarified to keep up with the times.

So, again, read Vern's 2nd to last paragraph. It is pretty cut and dry why the contracting officer considered them late, and was right to do so.

I would agree that the regulations need to be updated to reflect today's technology and to implement some sense into the system to really reflect the underlying objective. In this case, the Government allowed electronic submission, the firms did submit prior to the deadline and thus did lose control over any possible unfair modifications to their quotations, once the emails went into "ethernet space". The Government's email server system malfunction (though not under the Contracting Office's control) was apparently the reason that the quotes didnt reach the office's email system.

I was very sympathetic to their plight until I saw that they submitted their email quotes very near to the deadline for receipt. I believe that the government received them something like 18 minutes late. As Vern mentioned, the contracting office had specifically added the restrictive proposal submission deadline language to the RFQ, beyond the normal GSA contract limitations on late submissions. I didn't see it specifically mentioned in the 60 or so pages of the Case but since it wasn't a normal GSA contract requirement. perhaps the firms may have overlooked the prior day, 5:00 PM restriction.

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I was very sympathetic to their plight until I saw that they submitted their email quotes very near to the deadline for receipt. I believe that the government received them something like 18 minutes late.

Yeah, I tend to agree with that sentiment but I don't think that any court/GAO would side with us on it. I like to take the perspective that if you waited until the last second to send it then it's your fault if it ends up being late, but I'm not quite sure that argument holds up.

I think the misconception from many offerors is that as soon as they hit "send" from their e-mail they believe that the e-mail is submitted, when in actuality it could take any number of minutes to be received on the other end. That's the risk factor in waiting until the last minute with electronic delivery, as highlighted in this case. I think the court relied upon the first part of 52.212-1(f)(2)(i)(B) when making their ruling and forgot the "and" in it regarding "in Government control." I would define in Government control as the proposal being handed off to a Government official or in the case of electronic submittal in the inbox of Government employee. I'm not sure that either Offeror ever met the conditions of the clause, when read literally.

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I'm not sure that either Offeror ever met the conditions of the clause, when read literally.

I think that Judge is fed up with folks reading everything literally

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What else would he have us do? They write the laws and regulations into such a narrow definition that it's hard to reasonably interpret your way out of it to defend yourself, especially when there are multiple cases on it from GAO that uphold the very same position that he took the opposite stance on.

I'd love to take the common sense stand on this one that they made reasonable attemps to submit their updated proposals on time and that since the only means of submittal was electronic commerce (which was broken at the time) they should have reasonably accepted the proposal. The clause, however, is pretty damn specific that it should of been sent in the day prior in the case of electronic commerce or otherwise in Government control before the submittal time.

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What else would he have us do? They write the laws and regulations into such a narrow definition that it's hard to reasonably interpret your way out of it to defend yourself, especially when there are multiple cases on it from GAO that uphold the very same position that he took the opposite stance on.

D, I didnt say that I agreed with him, I'm just commenting on what I read. :)

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I regret that you cannot understand what I wrote.

don't let it bother you too much.

I seem to have a lot of trouble reading complicated stuff.

One of the reasons I check this site.

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