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Posted on Monday, December 01, 2014

Have Contingency Plans in Place for Your Proposal Submissions

Although a contractor in one recent case had a contingency plan that covered a variety of unforeseen events that would delay the delivery of its proposal to the Government, its plan did not account for the possibility that local flights could be grounded by severe weather. The result was that the contractor’s proposal was not submitted on time, and the Government rejected the proposal as untimely.Global Military Marketing, Inc. (“Global”) protested the Defense Commissary Agency’s (“DeCA”) rejection of its offer in response to a solicitation for the supply of fresh pork products. The solicitation made proposals due at the Government facility in Fort Lee, Virginia, by 3:00 p.m. on April 30, 2014. Although Global made two attempts to submit its proposal on time, both attempts failed.

Global first provided its proposal to Federal Express in Pensacola, Florida on April 29, 2014, to be delivered before the 3:00 p.m. deadline the next day. However, on April 29th, there was severe rainfall, and due to the extreme weather, FedEx rerouted Global’s proposal package via ground to Mobile, Alabama, where it was to be put on a courier plane. Mobile also was under a flood emergency, and the FAA restricted aircraft ground operations in Mobile due to the extreme weather. As a result, FedEx did not deliver Global’s proposal until May 1, 2014 – the day after the deadline.

Global’s normal contingency plan was to fly an employee by commercial airlines to deliver the proposal, but the weather prevented this. Due to flooded roads, Global’s employees were not able to reach their offices in Pensacola until two hours before the proposal deadline, at which time Global arranged for a Kinko’s near Fort Lee print, prepare, and deliver the proposal to the Agency. Kinko’s delivered the proposal just forty minutes after the 3:00 p.m. deadline.

The solicitation included FAR 52.212-1, which provides that untimely proposals would not be considered. Global cited FAR 52.212-1(f)(4), which provides a limited exception to this “late is late” rule, where “an emergency or unanticipated event interrupts normal Government processes so that offers cannot be received at the Government office designated for receipt of offers by the exact time specified in the solicitation[.]”
Global argued that the delay in the delivery of its proposals “was caused by the FAA’s restriction of aircraft ground operations at Mobile and Pensacola due to the flood emergency in the extreme weather.” According to Global, the delay was due to an interruption of normal Government processes – i.e., the FAA restricted aircraft ground operations at Mobile and Pensacola – which was naturally not Global’s fault.

The Court of Federal Claims rejected this argument, because the exception applies only to the Government operations at the Government offices designated for receipt of offers, not for any Government operations at the bidder’s location. Quoting the Federal Circuit, the Court of Federal Claims noted that “the FAR provision focuses upon whether unforeseen events prevent the Government from receiving proposals at the site designated, not on whether unforeseen events prevent the offeror from transmitting the proposal.”

Because Fort Lee, Virginia was operating under normal Government processes, FAR 52.212-1(f)(4) did not apply, and the court agreed with the Government that Global had not submitted a timely proposal. This case provides a hard lesson that adequate contingency plans for delivery of a proposal should always be kept in mind.

Global Military Marketing, Inc. v. United States, No. 140622C, Sept. 29, 2014 available at https://ecf.cofc.uscourts.gov/cgi-bin/show_public_doc?2014cv0622-21-0.

Stephanie Wilson is an attorney at the Washington, DC business law firm, Berenzweig Leonard, LLP. She can be reached at SWilson@BerenzweigLaw.com.

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