Friday, May 17, 2013
Saved by the Server: The Court of Federal Claims Holds That An Electronic Proposal Submitted By The Contractor Prior To The Deadline (But Received By The Agency After The Deadline) Is Timely
Chalk a win up for those last-minute proposal submissions that run up against the submission deadline. A recent U.S. Court of Federal Claims decision held that where a proposal is submitted electronically and received by a government server under the agency’s control prior to the submission deadline, the Government Control exception applies, rendering the submission timely. Judge Allegra stated in Insight Systems Corp. and Centerscope Technologies, Inc. v. United States that the Government Control exception provides that a proposal submission is not late if “[t]here is acceptable evidence to establish that it was received at the Government installation designated for receipt of offers and was under the Government’s control prior to the time set for receipt of offers.” In other words, a contractor’s proposal that is electronically submitted at 4:55 p.m. can be considered timely under a 5 p.m. deadline if there is evidence to show it got stuck in an agency’s servers – even if the agency does not receive the submission until 5:30 p.m.
Such was the case in Insight, where the two protesters submitted their quotations electronically before the RFQ-mandated 5 p.m. deadline, but the agency, due to internal errors with its servers, did not receive the quotations under after the deadline. The agency essentially argued that “late is late,” providing no relief for what it deemed a tardy submission. The agency further reasoned that the Government Control exception did not save the protesters’ quotations because it did not apply to electronic submissions. Judge Allegra disagreed, stating that “[t]his opens no Pandora’s (mail)box ─ it merely applies that exception, as written, to the technology that agencies themselves choose to employ.”
While it is certainly safer (and highly recommended) to submit an electronic proposal in reasonable advance of a submission deadline in order to avoid a timeliness debacle, contractors should take note that not all proposals deemed late by procuring agencies are necessarily late.