Proposal Deadlines and A (Fiscal) New Year's Resolution for Government Contractors

Fiscal year 2024 was another great one – full of ups and downs, IDIQs and GWACs, and a host of regulatory activity. And as we settle in on yet another fiscal journey, we can only hope that FY 2025 brings everyone good health, happiness, conferences and get-togethers, success, and contract wins!

On that note, and as is often customary when one chapter closes and another begins, many of you will be setting goals and making resolutions from which to operate in the new fiscal year. With that in mind, here's a simple resolution for your playbook: for email proposal submissions, set a goal – best practice – to email your proposal around 12:00pm one working day prior to the deadline set forth in a solicitation. [1] If that goal is not feasible, contractors should instead have a back-up goal of emailing proposals at least 4 to 6 hours in advance of the deadline.

Why? Virtually every federal agency uses complex systems and technologies – like email gateways and malware servers – to protect their networks and systems from malicious content (bad actors). Indeed, sometimes issues arise with PDFs or other technology/internet issues on the contractor side. Thus, by making it a company best practice to email proposals well before the deadline, contractors not only open the door to an exception to the late proposal rule but also give themselves a buffer to correct any hiccups along the way (e.g., your email gets trapped in a gateway server, internet outages, PDF issues).

As shown below, this buffer could potentially be the difference between your proposal being timely or being late. Remember: generally, and unless an exception applies, a proposal is timely when it is received at the designated place (inbox) prior to the deadline, not when it is sent. [2]

Examples:

A protester emailed its proposal (via multiple emails) about 1 hour before the proposal deadline. Due to technical issues, however, the proposal submissions were not received by the agency's servers until 2 hours after the deadline (3 hours after the protester emailed its proposal). GAO found that because the proposal was not received in the designated inbox prior to the deadline, and because no exception applied, the proposal was late. [3]
A protester emailed its proposal 6 minutes before the deadline. Due to technology delays, the DOD email gateway received the proposal 4 minutes after the deadline. The proposal was finally delivered to the designated inbox 4 minutes later (8 minutes after the deadline or 14 minutes after the protester emailed its proposal). GAO found that, despite the protester sending its proposal before the deadline, it was not received in the designated inbox prior to the deadline. As a result, the proposal was late. [4]
A protester emailed its proposal about 35 minutes before to the deadline and received a Microsoft Outlook delivery confirmation. Upon learning that the agency did not receive its proposal, the protester emailed its proposal again to the designated inbox and to other agency personnel (Outlook delivery confirmation). Unfortunately, the proposal never reached the designated inbox so it was not considered for award. Here, the proposal was not delivered to the designated inbox because, after the agency’s enterprise email security gateway server (EEMSG) scanned the email, it sent the proposal to an exchange email server that blocked it from being delivered to the designated inbox. GAO found that even though the proposal reached the EEMSG, the protester failed to show that it delivered its proposal to the designated inbox before the deadline. Hence, the proposal was late. [5]
A protester, in a two-phase procurement, emailed its phase one submission about 30 minutes prior to the deadline. When the protester hadn't heard back on whether it would make it to phase two, the protester emailed the agency. In response, the agency said it did not receive the proposal. The protester sent the agency log files showing that it submitted its proposal prior to the deadline. In response, the agency said it received the phase one submission but it was quarantined "because the email contained macro files that 'generally contain malicious code or computer viruses' and are 'harmful to IT environments.'" Because the email was quarantined, the proposal did not reach the designated inbox by the deadline. Ultimately, GAO rejected the argument that the proposal should have been accepted and declined to overturn its prior decisions. Thus, the proposal was late. [6]
A protester emailed – about 9 hours prior to the deadline – its proposal volumes to the agency and requsted receipt. The agency confirmed receipt of the volumes it received, except for volume IV (SBPP), but the protester failed to follow-up about the missing confirmation. The agency found the protester ineligible. After receiving the protest, the agency conducted an investigation and said that "it employs a two-step cybersecurity check for recipients with an [@]nga.mil email address." The agency determined that the emails reached its security gateway (advanced malware-defense) but were never passed to the email server and thus were not delivered to the designated inbox. Because the email gateway was not the designated place for receipt of proposals, the proposal was late. [7]

Takeaway

As shown above, GAO strictly interprets the "late is late” rule, in part, because it "alleviates confusion, ensures equal treatment of all offerors, and prevents one offeror from obtaining a competitive advantage that may accrue where an offeror is permitted to submit a proposal later than the deadline set for all competitors." [8] And although the outcome is perhaps harsh, the cases provide an important lesson: contractors should email proposals around 12:00pm one working day before the deadline both to account for delays or nondelivery (email, quarantine, internet outage, or file issues) and to be able to lean on an exception to the rule, if necessary. At minimum, and where that is not possible, contractors should aim to submit at least 4 to 6 hours in advance to have sufficient time to cure any issues that may arise. Finally, contractors also should request confirmation recipt for all submissions. Where the agency does not respond, that might be the canary in the coal mine that something went awry.

__________

[1] Besides providing a buffer to correct issues, an important reason why contractors should have a policy of submitting electronic proposals around 12:00pm one working day in advance is because the FAR provides an "electronic commerce" exception where a proposal 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 offers." FAR 52.212-1(f)(2)(i)(A); FAR 52.215-1(c)(3)(ii)(A)(1). Notably, this is just one exception, and the FAR, GAO, and Court of Federal Claims ("COFC") also provide nuance. Indeed, while the GAO decisions are viewed as harsh, some COFC decisions appear to favor contractors. Fed. Acquisition Servs. Team, LLC v. United States, 124 Fed. Cl. 690 (2016); Insight Sys. Corp. v. United States, 110 Fed. Cl. 564 (2013). Regardless, because the "late is late" rule has been interpreted differently at GAO and COFC, and due to nuance both in COFC protests and in the applicability of the rule, contractors should contact an attorney if you have any questions about where to file a bid protest.