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Government Contracts: Review Agency Decision of Late Proposal (FAR 15.208) Checklist
Practical Law Checklist w-032-0527 (Approx. 9 pages)
Government Contracts: Review Agency Decision of Late Proposal (FAR 15.208) Checklist
by Practical Law Government Practice
| Maintained • USA (National/Federal) |
A Checklist that assists federal agency attorneys with bid protest litigation when one of the issues involves whether the offerors proposal was late under Federal Acquisition Regulation (FAR) 15.208. This Checklist identifies some of the common claims and issues surrounding this basis for protest, aiding a federal attorney to analyze the agency's litigation risk of the contract award.
Litigation may ensue when an agency determines that a proposal or quote is late and will not be considered for award. The offerors of the proposal may protest the decision in one of the available fora, which could slow down the procurement process and affect the decision's integrity. Agency attorneys must be able to properly evaluate and analyze the agency decision to determine whether the agency should either:
- Revisit its decision to exclude the offeror for consideration of award.
- Defend the action.
Agency attorneys can help an agency reduce this litigation risk by involving themselves in drafting the deadline requirements and analyzing the deemed late proposal to validate the agency's position. Issues that offerors usually protest are:
- That terms of the delivery requirements were ambiguous, overcomplex, or confusing.
- Government delay.
- That the proposal or quote was late but an exception applies.
For more information on the Late is Late Rule, see Practice Note, Government Contracts: Late Proposals, Modifications, and Amendments (FAR 15.208).
For a Flowchart on how to analyze Late Proposals, see Government Contracts: How to Address a Late Proposal Flowchart.
For more information on bid protests, see Government Contracts GAO Bid Protest Toolkit.
Terms of the Delivery Requirements Were Ambiguous, Overcomplex, or Confusing
A protester may claim that a term of delivery was ambiguous, overcomplex, or confusing, which led to the proposal being late. Protests based on the solicitation's language are generally considered a latent ambiguity or alleged impropriety (4 CFR § 21.2(a)(1)). Protests of latent ambiguity or alleged impropriety in a solicitation must occur before bid opening or the time set for receipt of initial proposals. If an offeror fails to protest the issue before this time, this claim is untimely. (Sea Box, Inc., B-401523, B-401523.2, 2009 CPD ¶ 190 (Comp. Gen. Sept. 25, 2009); Rehal Int'l Transp., B-401090, 2009 CPD ¶ 81 (Comp. Gen. April 7, 2009).)
If an offeror fails to protest the issue before this time, this claim is untimely (Sea Box, Inc., B-401523, B-401523.2, (Comp. Gen. Sept. 25, 2009); Rehal International Transportation, B-401090, (Comp. Gen. April 7, 2009).)
Attorneys should review the terms of the solicitation to determine if the terms of delivery are ambiguous, overcomplex, or confusing. If the terms:
- Are not ambiguous, overcomplex, or confusing, then the offeror is late unless an exception applies (see Exceptions to Late Proposals, Modifications, or Quotes).
- Are ambiguous, overcomplex, or confusing, the agency may want to consider amending the solicitation to address the terms of delivery if:
- a term of delivery affects more than one offeror; and
- amending the solicitation will result in more competition.
If an agency decides to allow a late proposal to be considered for award, another offeror could protest the award based on this agency decision.
Determine Whether the Proposal Met the Specified Date, Time, and Location of Delivery Requirements (FAR 15.208(a))
- Determine whether the offeror used the method for transmission specified in the solicitation (FAR § 15.208(a)).
- Determine whether the agency defined in the request for proposal (RFP) how it will interpret the "government control" exception to the late proposal rule with respect to electronic submissions (Sea Box, Inc., B-291056, 2002 CPD ¶ 181 (Comp. Gen. October 31, 2002)).
- If there was no time deadline specified in the delivery requirements, determine whether the agency received the proposal before 4:30pm local time (Int'l Code Council, B-409146, 2014 CPD ¶ 26 (Comp. Gen. January 8, 2014)).
- Determine the exact physical or electronic delivery address and whether the offeror met that exact requirement (FAR 15.208(a) and 52.212-1(f); ManTech Advanced Sys. Int'l, Inc., B-414985, 2017 CPD ¶ 324 (Comp. Gen. October 20, 2017)). For example, if the requirement is to deliver a proposal to a specific email address, the proposal is late if it only gets as far as the agency's email security server.
- If the submission is a request for quote (RFQ), determine whether FAR 52.212-1(c) (Instructions to Offerors-Commercial Items) is part of the solicitation. If the clause is not included in the RFQ, then the Late is Late rule does not apply (Gartner Inc., B-408933.2, B-408933.3, 2014 CPD ¶ 67 (Comp. Gen. February 12, 2014); DataVault Corp., B-248664, 92-2 CPD ¶ 166 (Comp. Gen. September 10, 1992)).
- If the proposal was physically delivered, determine who (offeror or agency) had physical control of the proposal at the deadline. For example, a proposal is late if it only gets as far as the agency's mail room or other screening area and not to the specified location or address. (Brian X. Scott, B-410195, 2014 CPD ¶ 335 (Comp. Gen. November 7, 2014); Kesser Int'l, B-296294, 2005 CPD ¶ 127 (Comp. Gen. June 30, 2005); O.S. Sys., Inc., B-292827, 2003 CPD ¶ 211 (Comp. Gen. November 17, 2003).)
- If the proposal was delivered electronically, determine whether:
- the proposal was in the agency's email system by the deadline. If not, determine whether there is evidence that the proposal was in the agency's internet server control but had not yet been received by the email system (W. Star Hosp. Auth., B-414216.2, 2017 CPD ¶ 152 (Comp. Gen. May 18, 2017)).
- If there is a preponderance of the evidence that the electronic proposals were delayed by a server, determine whether the evidence shows that the delay was because of the offeror or the agency (SigNet Techs., Inc., B-417435, 2019 CPD ¶ 247 (Comp. Gen. July 3, 2019); Med-National, Inc., B-277430, 97-2 CPD ¶ 67 (Comp. Gen. September 8, 1997)).
- Determine whether the agency delay was the paramount cause of the of the proposal's late delivery. If the offeror contributed to the delay, generally the proposal is still late (Palomar Grading & Paving, Inc., B-274885, 97-1 CPD ¶ 16 (Comp. Gen. January 10, 1997); Hosp. Klean of Tex., Inc., B-295836, B-295836.2, 2005 CPD ¶ 185 (Comp. Gen. April 18, 2005); Laboratory Corp. of Am. v. U. S., 108 Fed. Cl. 549 (2013)).
- Determine whether other proposals were received around the same time successfully or if this only applied to the protester in question. (Fed. Acquisition Servs. Team, LLC, B-410466, 2015 CPD ¶ 20 (Comp. Gen. December 31, 2014)).
- Ensure that the agency received the whole proposal and in the required format as specified by the delivery requirements at the specified location. Receiving only part of the proposal, as opposed to missing "backup" information, by the deadline generally is not a timely submission. (JV Derichebourg-BMAR & Assocs., LLC, B-408777, 2013 CPD ¶ 269 (Comp. Gen. November 20, 2013); Wetlands Research Assocs., Inc., B-246342, 71 Comp. Gen. 289 (1992); SafeGuard Servs, LLC, B-404910, 2011 CPD ¶ 132 (Comp. Gen. June 28, 2011); Metters, Inc., B-403629, 2010 CPD ¶ 273 (Comp. Gen. November 10, 2010).)
- Confirm that the offeror's protest relies on the written terms of the solicitation and not oral assurances (Noble Supply and Logistics, B-404731, 2011 CPD ¶ 67 (Comp. Gen. March 4, 2011)).
- Examples of unacceptable evidence of meeting the delivery requirements include:
- an offeror sent the email to the appropriate agency email address (Ghazanfar Neft Gas LTD, B-414636, 2017 CPD ¶ 230 (Comp. Gen. July 21, 2017));
- the agency's email receiving system was not reasonably configured for offerors to send proposals (Western Star Hosp. Auth., Inc., B-414216.2, 2017 CPD ¶ 152 (Comp. Gen. May 18, 2017));
- that an offeror accessed the agency archival lock website and chose a file to upload but never hit the "submit" button (Tele-Consultants, Inc., B-414135, 2017 CPD ¶ 132 (Comp. Gen. February 27, 2017));
- that the proposal was submitted by email before the deadline (Washingtonian Coach Corp., B-413809, 2016 CPD ¶ 378 (Comp. Gen. December 28, 2016));
- the offeror's proposal reached the agency's email security system but not the specified email address (ManTech Advanced Sys. Int'l, Inc., B-414985, 2017 CPD ¶ 324 (Comp. Gen. October 20, 2017)); or
- a gate guard providing inaccurate directions, which delayed the submission of a proposal and contributed to the late proposal submission (U.S. Aerospace, Inc., B-403464, B-403464.2, 2010 CPD ¶ 225 (Comp. Gen. October 6, 2010)).
For more requirements for meeting the delivery requirements, see Practice Note, Government Contracts: Late Proposals, Modifications, and Amendments (FAR 15.208): A Proposal Must Meet the Specified Date, Time, and Location of Delivery Requirements (FAR 15.208(a)).
Exceptions to Late Proposals, Modifications, or Quotes
If a proposal, modification, or quote is late, there are three exceptions that may still apply or that the protester may argue applies to a specific situation. These exceptions only apply to proposals that:
- Are received before an award is made.
- Do not unduly delay the acquisition (FAR 15.208(B)(1); Blue Glacier Mgmt. Group, Inc., B‑412897, 2016 CPD ¶ 177 (Comp. Gen. June 30, 2016)).
If an exception applies:
- Determine whether, if transmitted through an electronic commerce method authorized by the solicitation, the agency received the proposal, modification, or quote 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 proposals (FAR 15.208(b)(1)(i)).
- Determine if there is acceptable evidence to establish:
- the agency received the proposal, modification, or quote at the government installation designated for receipt of proposals; and
- the proposal, modification, or quote was under the government's control prior to the time set for receipt of proposals (FAR 15.208(b)(1)(ii)).
- Determine if the agency received only the one proposal or quote (FAR 15.208(b)(1)(iii)).
For more details about exceptions to late proposals, modifications, and quotes, see Practice Note, Government Contracts: Late Proposals, Modifications, and Amendments (FAR 15.208): Exceptions to the Late Is Late Rule.
Acceptance of Late Quotes
- Confirm that the request for quotes does not contain a late quotation provision, such as FAR 52.212-1(f), expressly providing that quotations must be received by that date to be considered.
- Confirm that the award process has not begun.
- Determine whether accepting the quote would prejudice other offerors (Instruments & Controls Serv. Co., B-222122, 65 Comp. Gen. 685 (1986); KPMG Consulting LLP., B-290716, 2002 CPD ¶ 196 (Comp. Gen. September 23, 2002)).
- Determine whether the government control exception applies (eSimplicity, Inc. v. U.S., 162 Fed. Cl. 372 (2022)).
Late Modification of an Otherwise Successful Proposal
- Confirm that the late modification is for an otherwise successful proposal (Team Sys. Int'l, LLC, B-410420, 2014 CPD ¶ 378 (Comp. Gen. December 19, 2014); The Sandi Group, Inc., B‑401218, 2009 CPD ¶ 123 (Comp. Gen. June 5, 2009)).
- Determine whether the terms of the modification make the proposal more favorable to the government.
For more details about late modifications, see Practice Note, Government Contracts: Late Proposals, Modifications, and Amendments (FAR 15.208): Late Modification of an Otherwise Successful Proposal.
An Emergency or Unanticipated Event Interrupts Normal Government Processes (FAR 15.208(d))
- If a protester claims that an emergency or unanticipated event interrupted its ability to meet the delivery requirement, determine whether circumstances constituted an emergency or unanticipated event.
- For electronic deliveries, confirm with the IT department that there were no issues with the email or IT systems on the day of the deadline. Where there was evidence of issues with the agency email server that delayed submissions, an agency should consider extending the submission timeline or using a government control exception (Watterson Constr. Co. v. U. S., 98 Fed. Cl. 84 (2011) and eSimplicity, Inc. v. U.S., 162 Fed. Cl. 372 (2022)).
- Emergency or unanticipated events do not include an agency blocking the size or type of a file due to security requirements (VS Aviation Servs., LLC, B-416538, 2018 CPD ¶ 347 (Comp. Gen. October 03, 2018)).
- Review any claims of government delay or impediment to ensure there is adequate substantiation (Nat'l Beef Packing Co. LLC, B-415754, B-415773, 2018 CPD ¶ 77 (Comp. Gen February 16, 2018)).
- If there was an emergency or unanticipated event, determine if the agency amended the solicitation closing date or any other delivery instructions. Confirm that the protester met those requirements.
- If urgent government requirements precluded amending the solicitation, determine the first workday on which normal government processes resumed. Confirm that the protester met those requirements (Hunter Contracting Co., B-402575, 2010 CPD ¶ 93 (Comp. Gen. March 31, 2010)).
- The interruption of government processes is generally considered for the location of where the proposals are received (Global Military Mktg., Inc. v. U. S., 118 Fed. Cl. 624 (2014)).
For more details about emergencies or unanticipated interruptions, see Practice Note, Government Contracts: Late Proposals, Modifications, and Amendments (FAR 15.208): An Emergency or Unanticipated Event Interrupts Normal Government Processes.