Today, we can almost always communicate immediately in some way, shape, or form because we are always connected with our electronic devices. We can tweet, text, or email a “running a little late” note at any time and having that ace up our sleeve, with no consequences to using it, has led to more delayed meetings than I care to count. New York Giants’ head coach, Tom Coughlin, is notorious for his insistence that his players show up punctually. If his players showed up to a meeting “on time,” they were actually late. Coach Coughlin wants his players arriving to the meetings early, prepared, and ready to go at the start of each meeting. If players failed to adhere to this philosophy, there were consequences. Government contractors might be wise to adopt Coach Coughlin’s “if you’re on time, you’re late” philosophy when submitting bids and proposals.
Construction contracts are customarily prepared minutes before they are submitted. Subcontractors and suppliers, concerned with general contractors “shopping” their prices to competitors, submit quotes moments before the bid is submitted. This practice makes the compilation of the general contractor’s bid a chaotic last-minute exercise that is bound to result in errors, mistakes, omissions, and miscommunication.
Invitations for Bids issued by the government have specific deadlines when proposals have to be submitted. In negotiated proposals, the Solicitation informs offerors that proposals received at the designated place after the exact time specified in the solicitation will be “late” and will not be considered for award.[1] Although there are exceptions to this rule, they are extremely limited. As demonstrated below, bidders submitting proposals after the deadline are generally out of luck.
RDT-Semper Tek JV, LLC: In this case, the Department of Army Corps of Engineers issued a solicitation allowing offerors to submit proposals by hand delivery.[2] The solicitation directed offerors electing to submit a proposal via hand delivery to call ahead of time due to heightened security at government installations. “The RFP incorporated by reference Federal Acquisition Regulation (FAR) clause 52.215-1, which provides, among other things, that proposals received at the government office designated in the solicitation after the exact time specified for receipt of offers will be viewed as ‘late’ and will not be considered, except in certain circumstances.”
The bidder called the contracting officer several hours before the deadline and received instructions as to how and where to deliver the proposal, but waited until the last minute to deliver its proposal. When he delivered the proposal, he received a receipt from the agency’s mailroom time stamped at 2:03 p.m. There was a difference in recollections as to what time the bidder dropped off the bid, he insisted it was at 1:58 p.m., the clerk in the mailroom indicated that she opened the door to the mailroom for the bidder after 2:00 p.m.
The government rejected the proposal, finding that the bidder’s attempt to make the delivery only a couple of minutes before the time deadline was the paramount cause of lateness. The bidder simply did not allow enough time to fulfill its responsibility to deliver the proposal by the proper time. The bidder had assumed the risk by allowing so little time for delivery of its proposal. Thus, the bidder had no basis to protest the agency’s decision to reject the proposal as late.
JV Derichebourg-BMAR & Associates, LLC: Here, the Department of Navy, Naval Facilities Engineering Command (NAVFAC) issued a solicitation advising offerors to submit proposals via email.[3] A prospective bidder informed the agency that it would be sending its proposal in installments, with the attached proposal documents to be included in two separate emails. The contractor only included attachments with its first email and apparently forgot to attach the documents to its second email. As a result, the agency only sent the bidder at confirmation of receipt of the first email. After not having received a confirmation receipt for the second email, the bidder eventually resent the second email with the attachments after the deadline for receipt of proposals.
The bidder attempted to shift the blame to the agency for its late submission arguing that the agency was unreasonable in failing to notify the bidder of the missing attachment to the second email. In the bidder’s view, because the agency was informed that it would be receiving two emails with attachments and the second email failed to include an attachment, it was obvious that something was wrong. Thus, according to the bidder, the government should have notified it accordingly. The GAO rejected the bidder’s argument and denied the protest.
Comment: The government is not looking to do contractors any favors in the bid submission process. Contractors should be mindful of the solicitation deadlines and remember that if you’re early, you’re on time and if you’re on time, you’re late. The best practice is to provide an ample cushion for potential issues with bid delivery. After all, a crucial step to compete for government contracts is to actually submit a proposal in accordance with the terms and conditions of the solicitation. If you are not in the game, you have no chance of winning.[4]
[1] FAR 52.215-1.
[2] B-408811 (Comp.Gen.), 2013 CPD P 287 (2013).
[3] B-407562.3 (Comp.Gen.), 2013 CPD P 108 (2013).
[4] Special thanks to Brian King. See Brian King, “Last Minute Proposal Submission May Equal Late Proposal Submission,” Bid Protest Weekly, December 13, 2013.