Meaning of "Submitting" in FAR 15.505

[Steve Proctor]

I thought this issue would have come up before, but haven't found any authority on the subject. FAR 15.505(a)(1) says:

"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."

A debate has erupted in our office as to what "submitting" means in the context of snail mail requests for debriefing (we having recently received a request placed in the mail within the 3 day period, but received well after). I note that 15.506(a)(1) says, in contrast:

"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(, shall be debriefed and furnished the basis for the selection decision and contract award."

I presume the FAR fathers meant something by the use of different terms in the two sections, but the logic escapes me. Can anyone point to any authority as to what "submitting" means in this context? Thanks.

[brian]

.

GAO is very clear that it will not consider a protest that an unsuccessful offeror didn't get a debriefing,

regardless of whether it was timely requested.

You don't have time to prepare for a debriefing.

Get back to work.

.

[joel hoffman]

I thought this issue would have come up before, but haven't found any authority on the subject. FAR 15.505(a)(1) says:

"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."

A debate has erupted in our office as to what "submitting" means in the context of snail mail requests for debriefing (we having recently received a request placed in the mail within the 3 day period, but received well after). I note that 15.506(a)(1) says, in contrast:

"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(, shall be debriefed and furnished the basis for the selection decision and contract award."

I presume the FAR fathers meant something by the use of different terms in the two sections, but the logic escapes me. Can anyone point to any authority as to what "submitting" means in this context? Thanks.

I don't know the answer to your question. But how often do firms request debriefings these days by US Mail without also emailing or faxing the request? The firm would appear not to be in any hurry to be debriefed, if it only mailed a request for a pre-award debriefing, without also faxing or e-mailing it.

Geez, even in the "old days", 20-25 years ago, firms and the Government communicated by Western Union, if time was of the essence.

[Guest Vern Edwards]

All the same, it's a fun question. Has something been "submitted" when it has been sent or when it has been received? Does "submit" mean send or deliver? Is "submitting" sending or delivering? A quick and dirty search produced no case law. The answer probably depends on usage and context. Bryan Garner might say that it's a word that should be avoided in statutes, regulations, and contracts.

[TAP]

Since there's not a FAR definition of "submitting", I would say it then has the same meaning as it does when used elsewhere in FAR Part 15. In other words, like when when "submitting" a proposal in response to a RFP. It has to actually be received as the designated place, by the specified time. Well that's my 2 cents worth.

[Jacques]

[EDIT: IGNORE THIS POST]

No mailbox rule here on either side. You've already cited FAR 15.506(a)(1). The statutes are consistent. 10 USC 2305((5)(A) ("When a contract is awarded by the head of an agency on the basis of competitive proposals, an unsuccessful offeror, upon 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."); 41 USC 253b(e)(1) ("When a contract is awarded by the head of an executive agency on the basis of competitive proposals, an unsuccessful offeror, upon 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.").

Of course, untimely debriefing requests may be accommodated. FAR 15.506(a)(4)(i).

[Guest Vern Edwards]

When FAR does not define a word or term, FAR 1.108(a) says that the word or term retains its ordinary dictionary meaning. Here is the definition of submit (transitive vb) from Merriam Webster's online dictionary:

SUBMIT (transitive verb)

1 a : to yield to governance or authority, b : to subject to a condition, treatment, or operation <the metal was submitted to analysis>

2 : to present or propose to another for review, consideration, or decision; also : to deliver formally <submitted my resignation>

3 : to put forward as an opinion or contention <we submit that the charge is not proved>

[Jacques]

[EDIT: IGNORE THIS POST]

Consider International Resources Group, B-286663, Jan. 31, 2001, 2001 CPD ? 35, generally acknowledging that receipt controls, but acknowledging that receipt by a disappointed offeror of an email after business hours should be treated as being received the following business day.

[Jacques]

Mea culpa. I'm talking about post award debriefings and you're talking about preaward debriefings.

McGovern, GAO Protest Timeliness Rules, 99-03 Briefing Papers 1 (Feb. 1999), seems to assume without analysis the rules are the same: "In a procurement based on competitive proposals, an agency must by statute provide a debriefing when an offeror submits a written request for a debriefing that is received by the agency within three days after the date on which the offeror received notice of its exclusion from competition or of contract award." However, the statutory language is not identical. See generally Nash & Cibinic, Preaward Debriefings: Get Them Over With Quickly, 12 N&CR ? 22 (Apr. 1998) (noting "the requirement for preaward debriefings was not incorporated into the procurement statutes until passage of the National Defense Authorization Act for Fiscal Year 1996, Public Law 104-106 (the Clinger-Cohen Act of 1996).").

Good question.

[joel hoffman]

When FAR does not define a word or term, FAR 1.108(a) says that the word or term retains its ordinary dictionary meaning.

Yes, it is an interesting question. It would appear that the 2nd definition from the Webster On-line Dictionary covers the requirement - "to present or propose to another for review, consideration, or decision; also : to deliver formally <submitted my resignation>"

Thus, the recepient would probably have to actually receive the document, upon "presentation" or "delivery".

But I still wonder why someone would actually mail a request for a debriefing without sending it electronically...

[Jacques]

Consider Emerson Constr. Co., Inc., ASBCA 55165, 06-2 BCA ? 33382, 48 GC ? 336, finding that in the context of CDA s 605(a) and FAR 33.206, "submitted" and "received" are NOT synonymous. (It may have helped in that decision that the contractor had submitted his claim certified mail, so there was a neutral third party to help establish the date.) I'm not advocating that the analogy is a sound one, I'm just pointing it out. To submit a request for a preaward debriefing may be significantly different than submitting a claim, in that the CO's decision on the debriefing typically doesn't require nearly as much exercise of discretion.

The difference between submission and receipt is not just relevant in terms of timing. If there is any question as to whether the communication was effectively conveyed from Point A to Point B, "submission" would suggest the most relevant facts are within the control of the sender, while "receipt" would suggest the most relevant facts are within the control of the recipient. See Valix Federal Partnership I v. Dep't of the Air Force, GSBCA No. 12027-P, 93-1 BCA ? 25533, Oct. 23, 1992 (on the context of a protest of the terms of an IFB, transmission reports do not prove receipt, noting, "We have noted many reasons for lack of receipt notwithstanding transmittal, including the breakdown of the machine and transmittal of the wrong document."). Contrast, for instance, Wallace O'Connor Intern., Ltd. v. U.S., 23 Cl.Ct. 754, 757 (1991) (the contractor is not responsible for agency misdirection of a claim properly addressed to the CO). As you would expect, there are many decisions imposing appropriate obligations on a contractor submitting a claim with an eye to ensuring that it actually reaches the CO, so Wallace might not be typical.

[Steve Proctor]

Thanks to all for your thoughts, and especially Jacques for really digging into this. Jacques, I checked the Emerson case you cited, and I confess I don't see any discussion of the submit vs. receive issue. Notwithstanding that, it appears that there may not be any direct case authority under 15.505, and the best we can do is conjure on how far other FAR sections may take us by analogy.

For instance, 15.208(a) says: "Offerors are responsible for SUBMITTING proposals....so as to REACH the Government office designated in the solicitation by the time specified in the solicitation." (emphasis added).

[Jacques]

Steve, I should have cited the date of the decision, sorry. Here's the link.

If I were the government CO, I would provide the debriefing if it would be timely when requested. You could claim that you were providing it notwithstanding the fact that it was not timely. You could argue later to the GAO that the protest is untimely if it was filed more than 10 days after the disappointed offeror learned of its exclusion from the competitive range, claiming that the debriefing you provided was not a required debriefing. (You would have to argue either the disappointed offeror knew of its protest grounds when it received its exclusion notice or that Minotaur Eng'g, B-276843, May 22, 1997, 97-1 CPD ? 194; Beneco Enterprises, Inc., B-283154, Oct. 13, 1999, 2000 CPD ? 69 and Robert Clay, Inc., B-292443, Aug. 14, 2003, 2003 CPD ? 152, were wrongly decided, but why not? Shouldn't the rules encourage COs to accommodate untimely debriefing requests?)

If you refuse to provide the debriefing, and the GAO later decides the debriefing was timely requested, then the protester could claim it should have more time to protest. When does the protest clock stop if the government refuses to provide a required debriefing? (Presumably ten days after the disappointed offeror learns of that adverse decision, but why test the GAO's patience?) What if the refusal isn't crystal clear, and the disappointed offeror later claims it believed that the agency was going to provide it a post award debriefing? Better still, maybe by providing the preaward debriefing, you avoid the protest altogether. [Edit: OK, I know the odds that a preaward debriefing is going to provide the kind of detail that would satisfy a disappointed offeror might be low, but if the debriefing is more detailed than your notice to exclude, it's at least conceivable. I would think the odds of protest would go up if the government refused to provide a debriefing, simply because of the refusal.]

This is all very interesting from an academic perspective, but how often is it in the government's interest to defend a preaward protest by an offeror excluded from the competitive range?

[Steve Proctor]

Jacques, the upshot of our particular situation which gave rise to this posting was our KO decided to give the offeror the benefit of the doubt and grant a debriefing. I had no particular objection to that decision, particularly since we are comfortable that we were on solid ground in excluding the offeror from the competitive range, and it occurred to me as well that refusing to debrief might lead the offeror to wonder if we had something to hide, thus increasing the odds of a protest being filed.

I still can't figure out why the FAR would inject such a note of ambiguity by use of "submitting" without further clarification, but I suppose life is full of such mysteries. Thanks again to all for your thoughts.

[Jacques]

Steve, sorry if my last post was too preachy--it wasn't my intent--just trying to give food for thought.

While the statute and not the FAR created the ambiguity, it would have been nice if the Councils saw the ambiguity and resolved it in the implementation. It's easy to beat up on the Councils, and I fear a lot of my recent posts have been doing just that, but it sure would be nice if they did more than copy and paste the statute into the reg, assuming they were able to do so competently. Maybe we should count our blessings that they don't...