Federal government agencies are increasingly requiring offerors to submit their proposals electronically, whether by email or through a portal. While electronic proposal submissions can be convenient, they also pose risks to contractors–especially those who may be inclined to wait to hit “submit” until very close to the proposal deadline.
Under the strict “late is late” doctrine developed by the U.S. Government Accountability Office (GAO) in its bid protest decisions, if something goes wrong with a contractor’s attempt to submit an electronic proposal and the proposal arrives late, the contractor may be out of luck, even if the problem appears to be outside of the contractor’s control. Here are three examples of how strictly the GAO applied its “late is late” doctrine in 2024:
- In Guidehouse Inc., B-422115.2 (Jan. 19, 2024), the GAO held that an agency properly rejected a proposal as late where the offeror submitted the proposal before the deadline, but the agency’s cybersecurity software rejected the transmission. The GAO wrote that it was up to the offeror to ensure that its proposal was actually delivered to the government.
- In ICS Nett, Inc., B-422575 (July 24, 2024), the GAO held that the agency properly rejected a proposal as late where, due to alleged error messages from the government portal, one of the offeror’s volumes was uploaded one minute after the deadline. The GAO found no evidence that the portal malfunctioned and wrote: “When transmitting a proposal electronically, it is an offeror’s responsibility to submit its proposal sufficiently in advance of the time set for receipt of proposals to ensure proper delivery of the proposal and timely receipt by the agency.”
- In NAG Marine, B-422899 (Dec. 12, 2024), the offeror began attempting to upload its proposal about 30 minutes before the deadline. As in ICS Nett, the offeror alleged it experienced technical difficulties, and its proposal was not received until a few minutes after the deadline. Once again, the GAO determined that the agency appropriately rejected the proposal.
The Court of Federal Claims (COFC) takes a somewhat less aggressive posture than the GAO when it comes to the lateness of electronic submissions. Nevertheless, contractors can’t be assured that the “COFC” will rule in their favor if they experience problems submitting an electronic proposal–and going to court can be an expensive proposition. So, what can contractors do to avoid the problem in the first place?
Occasionally, the government imposes such tight deadlines that a last-minute submission is unavoidable, but in most of the “late is late” GAO cases, the contractor chose to wait until very close to the deadline to attempt to submit its proposal. In contrast, submitting a proposal early will allow a contractor time to address any technical issues that may arise and potentially obtain government confirmation that the proposal was received.
In acquisitions governed by FAR Part 15, submitting a day early may offer a form of “late is late” insurance. FAR 15.208(b)(1) states that the government may accept an otherwise late electronic proposal if it was “received 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.” This FAR provision can be a contractor’s saving grace if, for example, the proposal gets bottled up in the government’s spam filter.
As Yogi Berra once said, “It gets late early out there.” Making a plan to submit electronic proposals early is the best way to avoid last-minute stresses and the potential for a “late is late” proposal rejection.
For more information about Government Contracting, contact your CIRAS Government Contracting Specialist or complete our Request for Counseling form.