Submitting

[Guest Vern Edwards]

See FAR 15.505(a)(1). When has a request for a debriefing been submitted to the CO? On the date it was sent or on the date the CO received it?

FAR does not define submit, submitted, or submitting, and I do not know of any case law in which this question has been directly addressed with respect to FAR 15.505.

The answer is related to the issue of whether a debriefing is required.

[ji20874]

I don't know how a lawyer would answer it.

As a contracting practicioner, I have tended to look at it as RECEIVED by the contracting officer -- I don't want to look at it as postmarked by the postal system. But I try to be flexible in these matters.

If a contracting officer denies a debriefing, saying no entitlement exists because the request was not timely submitted, I suppose that contracting officer and his or her attorney adviser will have to justify that decision.

[Retreadfed]

The section says an offeror can "request" a debriefing by "submitting" a written request. Because it focuses on actions by the offeror, I interpret it to say the request is submitted when the offeror sends it to the contracting officer.

[metteec]

There are 148 instances of the word submit in the FAR. I am unaware of any definition or case law interpretations relating specifically to FAR 15.505(a)(1). However, Instructions to Offers (FAR Provision 52.212-1 and 52.215-1) require the offer to submit an offer to the Government location and before the date and time specified in the solicitation. There is vast amounts of case law revolving about when that submission occurs. GAO has consistently held that that Offerors bear the burden of proof to demonstrate that it timely submitted, and the agency received, its proposal (DJW Consulting, LLC, B-408846.3).

As a result, I interpret that submit means that the Offeror can reasonably demonstrate that it sent, and the contracting office received, its request. Notwithstanding, it is not a good business practice to deny late or not received debriefing requests, especially if the time between the competitive range/award decision and the debriefing request is short. First, it forces the Offeror into using the legal system if it wishes to get details on the agency's decision, leading to potential delays in the procurement process and added expense to the taxpayer. Second, businesses go to great expense to submit proposals in response to agency solicitations. Those businesses are taxpayers. We have a responsibility to those taxpayers to create a fair and transparent procurement process to promote trust in the acquisition system and ensure maximum practical competition for the next acquisition.

P.S. In instances where I have received a late debriefing request, I would remind the Offeror that the agency was not required to provide the debriefing but did so in the interest of assisting the Offeror in responding to future procurements.

[Guest Vern Edwards]

Instructions to Offers (FAR Provision 52.212-1 and 52.215-1) require the offer to submit an offer to the Government location and before the date and time specified in the solicitation. There is vast amounts of case law revolving about when that submission occurs. GAO has consistently held that that Offerors bear the burden of proof to demonstrate that it timely submitted, and the agency received, its proposal (DJW Consulting, LLC, B-408846.3).

FAR 52.212-1 and 52.215-1 distinguish between submission and receipt. Timeliness is based on receipt, not submission. Your statement of the GAO's position is wrong. Under the current timeliness rules the GAO does not require proof of the date and time of submission, but of the date and time of receipt. See Team Systems International, LLC, GAO B-410420, 2014 CPD ¶ 378, emphasis added:

It is an offeror's responsibility to deliver its proposal to the proper place at the proper time and late delivery generally requires rejection of the proposal. FAR §15.208(a); PMTech, Inc., B–291082, Oct. 11, 2002, 2002 CPD ¶172 at 3.

DJW Consulting, LLC, GAO B-408846.3, 2014 CPD ¶ 77, does not stand for the proposition that you said it does. Here is what the decision actually said, emphasis added:

It is an offeror's responsibility to deliver its proposal to the proper place at the proper time. FAR §15.208; Lakeshore Eng'g Servs., B–401434, July 24, 2009, 2009 CPD ¶155 at 4. We have found an agency's rejection of a proposal is reasonable where, notwithstanding a protester's claim that it emailed its proposal to the agency, the record does not show that the proposal was actually received. See Latvian Connection Trading and Constr., LLC, B–402410, Feb. 25, 2010, 2010 CPD ¶58 at 3.

[C Culham]

I say submit = receipt.

Basis for my conclusion is that an individual actually has two options when it learns of exclusion from the competition, file a protest or submit a request for debriefing. In that a timely “filed” protest is based on “receipt” it would seem appropriate that “submitting” a request for debrief is based on the same standard.

As you have noted Vern there does not seem to be any GAO decisions on point but my above conclusion is based in part the following…..

GAO Protest Regulations at 4 CFR. 21.0(f) “ A document is filed on a particular day when it is received by GAO”

B-406170, Hawker Beechcraft Defense Company, LLC, December 22, 2011 “HBDC did not timely request a debriefing or file a timely protest”

International Resources Group, B-286663, January 31, 2001 “Accordingly, we find that IRG's request for a preaward debriefing here, which was filed within 3 days after IRG received notice of its exclusion from the competitive range on September 5, was timely.” Here the GAO seems to equate “file” to “submit” with regard to the debriefing request.

[Don Mansfield]

Contrast FAR 15.501(a)(1) and FAR 15.506(a)(1):

The offeror may request a preaward debriefing by submitting a written request for debriefing to the contracting officer within 3 days after receipt of the notice of exclusion from the competition.

An offeror, upon its written request received by the agency within 3 days after the date on which that offeror has received notification of contract award in accordance with 15.503( b ), shall be debriefed and furnished the basis for the selection decision and contract award.

Submit does not mean receive. If the FAR Council meant "received", they would have written "received."

[C Culham]

Or could it be that the FAR Council did not know what it meant.....after all we have all noted places where the FAR is not as exact as one would think.

[Guest Vern Edwards]

Thank you, Carl.

[Don Mansfield]

Or could it be that the FAR Council did not know what it meant.....after all we have all noted places where the FAR is not as exact as one would think.

If the rules were written at different times by different people, you may have a point. However, these two rules came out together in FAC 90-44, 61 FR 69286, December 31, 1996. As such, I'm not inclined to buy the careless drafting theory.

[Guest Vern Edwards]

The difference in the wording of 15.505 and 15.506 is based in the difference in the wording of the statutes. See 41 USC §§ 3704 and 3705:

§ 3704 Post-award debriefings. (a) Request for Debriefing. -- When a contract is awarded by the head of an executive agency on the basis of competitive proposals, an unsuccessful offeror, on written request received by the agency within 3 days after the date on which the unsuccessful offeror receives the notification of the contract award, shall be debriefed and furnished the basis for the selection decision and contract award.

§ 3705 Pre-award debriefings. (a) Request for Debriefing. -- When the contracting officer excludes an offeror submitting a competitive proposal from the competitive range (or otherwise excludes that offeror from further consideration prior to the final source selection decision), the excluded offeror may request in writing, within 3 days after the date on which the excluded offeror receives notice of its exclusion, a debriefing prior to award.

Of course, what Carl said about the FAR councils applies in spades to Congress.

In any case, does it matter? Should an assumption of careless drafting influence interpretation? Can an interpreter assume careless or careful (unintentional or intentional) drafting? Or should he or she go by plain meaning? If the latter, then what does "by submitting" mean?

[metteec]

I see where the confusion in my post came from; I was using submit and receipt interchangeably by habit. The definition of submit is to "present (a proposal, application, or other document) to a person or body for consideration of judgment." How do you present something with out the other entity's participation?

Relating to Don's comment, I think the reason why the FAR does not make a distinction between receipt and submit in some areas because there have not been much contention on those issues on what submit means. Though, I was surprised I did not find any instances where the Court of Federal Claims ruled on the definition of "submit" related to claims. I could see an instance where a Contractor attempted to submit a claim the Contracting Officer on the last day of the sixth year (FAR 33.206), but the Contracting Officer never received it or it was received late.

[Guest Vern Edwards]

If the rules were written at different times by different people, you may have a point. However, these two rules came out together in FAC 90-44, 61 FR 69286, December 31, 1996. As such, I'm not inclined to buy the careless drafting theory.

Don, just so you know, FAC 90-44, 61 FR 69286, added language about pre-award debriefings, but did not change the language about post-award debriefings. The language of the two sections originated at different times.

[Retreadfed]

While not interpreting a FAR provision, the attached COFC decision addresses what "submit" means in the context of the means of submission used in this case.

https://ecf.cofc.uscourts.gov/cgi-bin/show_public_doc?2012cv0059-75-0

[Guest Vern Edwards]

Just to be clear, that decision does interpret "by submitting" as used in FAR 15.505.

[Guest Vern Edwards]

I see where the confusion in my post came from; I was using submit and receipt interchangeably by habit. The definition of submit is to "present (a proposal, application, or other document) to a person or body for consideration of judgment.

Please cite the source of your definition of submit. Different dictionaries sometimes define a word differently.

[metteec]

Vern, that definition was from the Oxford dictionary.

[Don Mansfield]

Take a closer look at the case Carl referenced: International Resources Group, B-286663 January 31, 2001. In determining whether a preaward debriefing request was timely, the GAO only considered when the offeror submitted its request. There's no discussion of when the agency received the request. Given the fact that they did not respond to the request, they may not have received it.

By e-mail dated September 7, IRG requested a debriefing. On September 20, having received no response from the agency, IRG reiterated its request. Award to HBS was made on September 26. On October 6, the agency notified the protester that it would furnish a post-award debriefing on October 12. The debriefing was held on October 12, and IRG protested to our Office on October 23.

As a preliminary matter, the intervenor, PA Consulting Group (which, as noted above, acquired HBS after award of the contract here), argues that IRG's complaint regarding the discussions conducted with HBS should be dismissed as untimely because it was not filed within 10 days after the protester learned of its basis for protest. PA contends that IRG clearly knew of this basis for protest by September 1, ⁵ but did not file its protest until October 23. PA acknowledges that our Bid Protest Regulations provide for an exception to the requirement that a protest be filed not later than 10 days after the basis of protest is, or should have been, known where the protest challenges a procurement conducted on the basis of competitive proposals under which a debriefing is requested and, when requested, is required, 4 C.F.R. §21.2(a)(2) (2000), but argues that the debriefing here was not required because it was not requested in a timely manner. PA notes that in order for a request for a pre-award debriefing to be timely, it must be made “within 3 days after receipt of the notice of exclusion from the competitive range.” FAR §15.505(a)(1). PA contends that IRG's request for a pre-award debriefing was untimely because it was not filed until September 7, 6 days after IRG received notice of its exclusion from the competitive range on September 1.

Although the e-mail message notifying IRG of its exclusion from the competitive range was apparently sent by the agency shortly before midnight (Washington, D.C. time) on September 1, it did not enter IRG's computer system until approximately 12:16 a.m. on Saturday, September 2, Declaration of IRG's Vice President ¶5, and was not opened by the recipient until the following business day, Tuesday, September 5.⁶ Supplemental Declaration of IRG's Vice President ¶4. Where an e-mail notification of exclusion from the competitive range enters an offeror's computer system after close of business on a weekday or on a weekend or holiday and is not opened before the following business day, we think that for purposes of FAR §15.505(a)(1), receipt of the notice should be considered to have occurred on that business day. ⁷ To construe receipt of an e-mail notification as occurring when the notification enters the offeror's computer system, even when the entry occurs outside of normal business hours, would lead to a reduction of the 3-day period for requesting a debriefing granted by the FAR to a single day when the notification is transmitted after close of business on Friday or on Saturday of a weekend followed by a Monday holiday. Accordingly, we find that IRG's request for a preaward debriefing here, which was filed within 3 days after IRG received notice of its exclusion from the competitive range on September 5, was timely.

As such, I don't believe the date the request is received by the Government is relevant.

In any case, does it matter? Should an assumption of careless drafting influence interpretation? Can an interpreter assume careless or careful (unintentional or intentional) drafting? Or should he or she go by plain meaning? If the latter, then what does "by submitting" mean?

No, I don't think an interpreter should assume careless drafting if a reasonable interpretation can be made.

Don, just so you know, FAC 90-44, 61 FR 69286, added language about pre-award debriefings, but did not change the language about post-award debriefings. The language of the two sections originated at different times.

I stand corrected. But for the reason stated above, I'm still not going to assume careless drafting. Submit does not mean receive.

[Guest Vern Edwards]

We could go on discussing this forever without resolution. I don't know what "by submitting" is suppose to mean. I say its ambiguous. According to FAR 1.108(a), we must use the "common dictionary meaning" of words that are not defined in FAR. metteec's Oxford Dictionary defines "submit" as follows:

2. [with obj.] present (a proposal, application, or other document) to a person or body for consideration or judgement: the panel's report was submitted to a parliamentary committee .

My American Heritage Dictionary defines "submit" as follows:

3. To present (something) to the consideration or judgment of another: We submitted ur ideas to our supervisor.

The American Heritage Dictionary defines "present" as follows:

2. a. To offer for observation, examination, or consideration; show or display: The detective presented his badge.

Based on those, especially the usage guide in the AHD (The detective....), I say that the request is submitted when it has been handed over or "received." But my instincts tell me that a court would interpret "by submitting" to mean "by sending."

The implications are potentially significant, because the interpretation could affect whether a debriefing is required by FAR 15.505 and thus whether an agency must suspend or terminate performance following notification of a protest by GAO. See FAR 33.104( c )(1). If submit means send, then a protester could send a request by snail mail within 3 days and still entitled to a debriefing no matter when it gets to the CO, which means that the agency could be required to terminate or suspend long after award if the delivery is delayed by, say, bad weather. Interpreting "by submitting" as meaning "by sending" injects greater uncertainty about time and costs into the award process, which I doubt that Congress intended and which can't be good for the acquisition system.

I don't know what the "correct" interpretation is. To me, the lesson to be learned by this example is that we "professionals" should pay more attention to proposed rules and comment when we think that a rule should be made clearer. If the FAR councils believed that the statute meant that the clock runs to the date on which the request is sent (or transmitted), then they should have said so in no uncertain terms. "By submitting" is not certain enough for me.

An interesting question is whether an agency could impose an interpretation by stating it in its solicitation.