The Agency’s Email Server Ate My Proposal! – GAO Rejects Challenge to “Late is Late” Rule

Offerors understand that missing a submission deadline can sink even the best proposal because “late is late.”  But what happens when an offeror timely emails its proposal only to have an agency server reject it without any notification to the offeror?  GAO’s recent decision in Guidehouse, Inc., B-422115.2, Jan. 19, 2024, says that the proposal is still late and emphasizes the potentially draconian impact of the “late is late” rule.

In Guidehouse, the National Geospatial-Intelligence Agency (NGA) competed a task order for audit management and support services amongst GSA Federal Supply Schedule contract holders.  Four offerors, including Guidehouse, timely submitted initial proposals.  NGA identified an issue with Guidehouse’s small business participation plan (SBPP), resulting in an initial rating of “fail.”  NGA then engaged in exchanges with Guidehouse, after which Guidehouse revised its proposal, including its SBPP, and timely emailed its revised proposal to NGA in accordance with the agency’s submission instructions before the submission deadline.  Specifically, Guidehouse emailed each revised proposal volume in a separate email to the designated NGA contracting officer and requested a confirmation of receipt.  However, while five of Guidehouse’s emails successfully reached the NGA contracting officer—who confirmed receipt of those five emails, and only those five emails—Guidehouse’s sixth email containing its revised SBPP was rejected by the NGA’s cybersecurity system.  Because NGA never received the updated SBPP, Guidehouse’s SBPP rating remained unacceptable and Guidehouse was ineligible for award.

Guidehouse protested at GAO, arguing that NGA failed to reasonably consider Guidehouse’s revised SBPP given that Guidehouse timely submitted its revised proposal volume to the agency’s designated email inbox.  GAO disagreed.  Relying on its recent decision in Ace Electronics Defense Systems, LLC, B-420863, Sept. 2, 2022, in which it held that a proposal was properly deemed late where it was timely submitted but rejected by the agency’s cybersecurity screening software, GAO reiterated that an offeror bears the responsibility to ensure its proposal is timely delivered to the proper location, and that an agency is not required to consider a proposal when it fails to arrive at the designated address by the applicable deadline.  GAO also noted that although Guidehouse involved a FAR Part 8.4 procurement—which, in contrast to FAR Parts 14 and 15, does not contain a late submission provision—the solicitation specifically cautioned offerors that if even one quotation volume was late, “the Offeror’s entire quote will be considered late and will not be evaluated or considered for award.”  GAO further faulted Guidehouse for failing to follow up with NGA after not receiving confirmation of receipt for the missing SBPP.

Key Takeaways

• Companies emailing proposals (or portions thereof) to the federal government must ensure that the government actually receives the full proposal. Companies should request confirmation of receipt and follow up or consider resubmission (provided that the deadline has not yet passed) if confirmation is not received.  An agency’s silence should not be construed as confirmation that a full proposal was timely submitted.
• The “late is late” rule is an area where GAO and the Court of Federal Claims have diverged. For example, in eSimplicity, Inc. v. United States, 162 Fed. Cl. 372 (2022), the Court considered similar circumstances to those in Guidehouse and ruled that the Government’s rejection of the “late” proposal was improper.  Therefore, it is crucial for companies considering a protest challenging the rejection of their proposal as “late” to strategize with experienced protest counsel to select the best forum for their challenge.