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Posted on Tuesday, August 22, 2017

Proposal Submittals via Email Run into Problems

Although email has in many ways made procurement easier, like many things it has a downside. Two recent decisions of the Government Accountability Office (GAO) show how proposals got lost at the very end of the proposal preparation process and were never received by the government. Not only did the vendors lose out on a business opportunity after spending money preparing a proposal; the government also lost a competing vendor.

One decision, involving a government electronic portal submission process, shows why it is never wise to wait until the last minute to submit a proposal.

Tele–Consultants, Inc. (TCI) tried to submit a task order proposal for work under the SeaPort-e multiple award indefinite-delivery/indefinite-quantity (ID/IQ) contract. Under the RFP’s rules, TCI had to submit the proposal to the IDIQ’s electronic portal, the submittal process ending officially and legally when TCI confirmed its intention to submit its proposal by clicking on the portal’s “Submit Signed Proposal” button before the submittal deadline. After learning that the government had apparently not received its proposal, TCI protested its exclusion from the solicitation. However, government records showed, and TCI conceded, that TCI’s senior contract analyst and president attempted to click the “Submit Signed Proposal” button two separate times, at 23 and 34 seconds after the 2:00 p.m. closing time, respectively.

The agency argued, and GAO agreed, that because TCI never engaged the “Submit Signed Proposal” button, TCI did not submit a signed final proposal, either prior to the submission deadline or thereafter. According to GAO, “TCI never actually submitted its proposal. Here, the electronic submission of a legally binding offer was not completed until an offeror engaged the portal’s ‘Submit Signed Proposal’ button, and accepted an agreement to legally bind the company to its submission by the closing time of 2:00 p.m. Eastern Time. Additionally, the portal does not allow a vendor to engage the “Submit Signed Proposal” button after the time set for closing-as TCI apparently tried here.” Because there is no evidence that TCI’s proposal was “actually received,” GAO denied the protest. Tele–Consultants, Inc., B- 414135, Feb. 27, 2017.

Perhaps even more unfortunate is being “late” when the vendor submitted the proposal, or thought it had been submitted via regular email, weeks before the submission deadline.

Ghazanfar Neft Gas LTD thought it had submitted its proposal via email to the contracting officer and contract specialist on March 13, 2017, well in advance of the government’s April 3, 2017 deadline. But the vendor never confirmed prior to April 3rd that the government had received it even though the agency’s Q&A had reminded offerors that it was their “responsibility to confirm that an offer had been received.” In correspondence with the government on April 8, Ghazanfar learned that the government had not received its emailed proposal. In its protest to GAO, Ghazanfar submitted sworn declarations from its deputy chief executive officer and information technology officer, as well as a screenshot demonstrating that the email transmitting the proposal had been sent to the government.

GAO agreed with the government that Ghazanfar’s proposal had not been received. “Although the protester has provided evidence that it sent his proposal to the agency in a timely manner and that a copy of the March 13 transmittal email was received internally at Ghazanfar, this evidence does not demonstrate that DLA in fact received the proposal.” GhazanfarNeft Gas LTD, B-414636, July 21, 2017.

As the above GAO decisions show, there is little, if any, flexibility in an agency’s decision to consider a late proposal or worse, one its records show was never received. The few minutes it takes to confirm government receipt of a proposal are the best investment vendors can make in the solicitation process.

Berenzweig Leonard is teaming up with Red Team Consulting for a monthly newsletter featuring upcoming contracts, key protest decisions, legal updates, events, and more. This post was published in the July 2017 Monthly Insights newsletter. For more information on how to sign up for Monthly Insights, please click here.

Terry O’Connor is a Partner at Berenzweig Leonard, LLPHe and Stephanie Wilson lead the firm’s Government Contracts practice. Terry can be reached at TOconnor@BerenzweigLaw.com.