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elgueromeromero

Late Submission of Electronic Proposals

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I’ve been reading several GAO decisions regarding electronic proposals where contractors emailed proposals prior to the RFP deadline but the proposal didn’t show up in the CO’s inbox until after the deadline and the GAO ruled that the proposals was late based on FAR 52.215-1(c)(3)(ii)(A)(1). I’ve also read the COFC decisions where they disagree with the GAO in that the “Government Control” exception does apply to electronic submissions. Speaking from experience, I know that Contracting Officers interpret and handle this differently. In these situations, some would accept the proposal and some would reject it. It’s basically a crapshoot. So, here’s my questions:

1. Based on the disagreement between the GAO and COFC regarding the “Government Control” exception, how should a CO interpret the FAR rules regarding late electronic proposals? 

2. As part of a post-award debriefing for an RFP that required electronic submission of proposals, can the contractor receiving the debrief request evidence of the time of reciept of the successful offeror’s proposal, or would this have to be requested through FOIA? I would think that if timely submitted, the CO would have no reason not to provide this. If, however, the CO is not willing to provide that information, there’s a possibility they could be trying hide something.

Again, I’ve personally witnessed CO’s accepting late (according to FAR and GAO) emailed proposals where the proposal comes in a few minutes after the deadline. I personally think this is actually fairly common, based on my experience as a CO and working for a contractor.

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The contracting officer needs to make a decision -- his or her own decision -- based on the facts and the solicitation instructions.

Personally, I tend to favor the GAO approach -- the GAO has continued to rule as it does, repeatedly, since the last COFC decision.  

But each contracting officer needs to make his or her own decision -- the contracting officer cannot abdicate the decision-making role to the GAO or the COFC.

For the time being, I am okay with some variety in practice in this matter.  Is that a problem?

What do you think?  You're a contracting officer -- do you think the Government control exception for late offers applies to electronic proposals? or do you think the electronic commerce exception (with its one-day-prior rule) is the proper tool for late electronic proposals?

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1 hour ago, ji20874 said:

The contracting officer needs to make a decision -- his or her own decision -- based on the facts and the solicitation instructions.

 

I agree.

1 hour ago, ji20874 said:

But each contracting officer needs to make his or her own decision -- the contracting officer cannot abdicate the decision-making role to the GAO or the COFC.

Agreed. But should the GAO or COFC decisions influence the CO's decision? 

1 hour ago, ji20874 said:

For the time being, I am okay with some variety in practice in this matter.  Is that a problem?

I think it can be a problem. For one thing, the disagreement between the GAO's interpretation and that of the COFC could encourage forum shopping with respect to protests. It could also put COs in a tough situation where following the FAR and GAO precedent could still result in a painful and likely successful COFC protest.  Finally, I think late proposal rules should be consistent and objective rather than a subjective process based on COs' differing interpretations of the rules (potentially influenced by COFC and GAO).

2 hours ago, ji20874 said:

What do you think?  You're a contracting officer -- do you think the Government control exception for late offers applies to electronic proposals? or do you think the electronic commerce exception (with its one-day-prior rule) is the proper tool for late electronic proposals?

I agree with the GAO that FAR 52.215-1(c)(3)(ii)(A)(1) becomes a nullity if the Government Control exception were to apply to electronic proposals and that the clause should be read and interpreted as a whole. I'm a little torn as to whether the Government Control exception SHOULD apply to electronic proposals. But if so, then FAR 52.215-1(c)(3)(ii)(A)(1) should be deleted/removed.

What are your thoughts on my second question?

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52 minutes ago, elgueromeromero said:

But should the GAO or COFC decisions influence the CO's decision?

Sure -- but they disagree -- so the contracting officer needs to make his or her own decision, one way or the other, based on the facts at the time -- the contracting officer cannot declare an inability to make a decision, wringing his or her hands and bemoaning the different precedents (not making an argument that the decisions are precedential, just acknowledging their existence).

4 hours ago, elgueromeromero said:

2. As part of a post-award debriefing for an RFP that required electronic submission of proposals, can the contractor receiving the debrief request evidence of the time of reciept of the successful offeror’s proposal, or would this have to be requested through FOIA?

The unsuccessful contractor may request anything it wants.  But the contracting officer is only required to provide reasonable responses to relevant questions about whether source selection procedures were followed (FAR 15.506(d)(6)).  The contracting officer is not required to provide evidence of anything at a debriefing. 

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41 minutes ago, ji20874 said:

Sure -- but they disagree -- so the contracting officer needs to make his or her own decision, one way or the other, based on the facts at the time -- the contracting officer cannot declare an inability to make a decision, wringing his or her hands and bemoaning the different precedents (not making an argument that the decisions are precedential, just acknowledging their existence).

The unsuccessful contractor may request anything it wants.  But the contracting officer is only required to provide reasonable responses to relevant questions about whether source selection procedures were followed (FAR 15.506(d)(6)).  The contracting officer is not required to provide evidence of anything at a debriefing. 

“Was the awardee’s proposal received in the contracting officer’s inbox by 3:00 pm EDT”?

Do you think that’s a relevant question about whether source selection procedures were followed? If not, apart from being honest, what’s to prevent a CO from accepting a late proposal if they aren’t required to disclose that information? 

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35 minutes ago, elgueromeromero said:

“Was the awardee’s proposal received in the contracting officer’s inbox by 3:00 pm EDT”?

Sure, that's a fair question.  The answer will be:

  • "YES"; or 
  • "NO, but the contracting officer accepted the late offer based on the [electronic commerce or government control] exception described in para. (c)(3)(ii)(A)[(1) or (2)] of the solicitation provision at FAR 52.215-1".

There is nothing to be afraid of.

Contracting officers reject late proposals (except where allowed such as we're discussing) based on their commitment to the integrity of the procurement process.  If circumstances allow for acceptance of late proposals, contracting officers are not embarrassed to explain why they accepted them.  I'm talking about contracting officers that are honorable and knowledgeable.

If you are preparing for a debriefing, you can ask the unsuccessful offeror attendee to share with you in writing before the debriefing any questions they want answered that fit within FAR 15.506(d)(6).

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7 minutes ago, ji20874 said:

Sure, that's a fair question.  The answer will be:

  • "YES"; or 
  • "NO, but the contracting officer accepted the late offer based on the [electronic commerce or government control] exception described in para. (c)(3)(ii)(A)[(1) or (2)] of the solicitation provision at FAR 52.215-1".

There is nothing to be afraid of.

If an unsuccessful offeror received the "NO" answer above, the offeror would almost surely be successful in a protest to the GAO.  So I think the a CO in this situation would have something to be afraid of. I actually work for a contractor now but I was a CO previously. There were at least 3 occasions where I received an email proposal just minutes after the deadline. I didn't accept them based on the FAR rules and GAO precedent, but I can tell you that many COs I've worked with in the past would have (and have) accepted proposals in those situations based on the "Government Control" exception. Sometimes the offeror sent a delivery receipt that the CO relied on and other times it was more of "meh, I'm sure they sent it on time, it's just that emails take so long to get through our darned Government servers."  No one on the source selection team ever checks the time the proposals were received in the CO's inbox, and unsuccessful offerors never seem to question it. Should they though? Why haven't they? Possibly because it's a contentious question that hints at protest and signals distrust in the integrity of the source selection process? I don't know, but if a contractor loses a contract after putting in hundreds of hours and thousands of dollars of effort in preparing the proposal, wouldn't they at least want to make sure that the successful offeror submitted the proposal on time? In my opinion, when an offeror's proposal shows up even one minute later than the deadline in the RFP, it's no different than an offeror failing to provide a required bid bond for a construction RFP. Almost every CO would throw out an offeror for the bid bond issue, but I'll argue that many would not throw out a contractor when their proposal is received "just a few minutes" after the deadline. 

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2 hours ago, elgueromeromero said:

If an unsuccessful offeror received the "NO" answer above, the offeror would almost surely be successful in a protest to the GAO.

I disagree. 

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10 hours ago, elgueromeromero said:

1. Based on the disagreement between the GAO and COFC regarding the “Government Control” exception, how should a CO interpret the FAR rules regarding late electronic proposals? 

However he or she thinks best. As things now stand, there is no "correct" interpretation.

If the proposal would be late under the GAO's interpretation, but timely under the COFC's interpretation, my decision would depend on whether the proposal in question might be the best, in which case I'd go with the COFC's interpretation.

10 hours ago, elgueromeromero said:

2. As part of a post-award debriefing for an RFP that required electronic submission of proposals, can the contractor receiving the debrief request evidence of the time of reciept of the successful offeror’s proposal, or would this have to be requested through FOIA? 

Poorly worded question. Of course the offeror can request. A person can request anything. The question should be whether the CO must provide such evidence upon request. The answer is No, because no statute or regulation requires that a CO provide any such evidence upon requeast.

Should a CO provide it? If I were the CO it would depend on how much trouble it would be and whether there would likely be any controversy about it.

There is a way around all of this. The CO can state in the RFP how he or she will interpret the "government control" exception to the late proposal rule with respect to electronic submissions. Anyone who objects would have to protest before the deadline for receipt of proposals. It is very unlikely that anyone will do so.

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