Late-Is-Late Rule Precludes Agency from Extending Proposal Deadline to Accept Untimely Proposals; Syncon LLC v. United States, Hourigan Construction Corp. v. United States, COFC No. 21-1035C

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Protests challenging the rejection of untimely proposals are denied. The protesters had problems uploading their proposals to the agency’s electronic platform. The proposals were received after the deadline. The agency issued an amendment to extend the proposal deadline, but later rescinded the amendment determining that it did not have discretion to accept late proposals. The court found that the agency acted properly. The FAR states that agencies cannot consider late proposals. Agencies do not have discretion to consider late proposals in contravention of the FAR. The court further found that none of the exceptions to the late-is-late provided safe harbor for the protesters’ untimely proposals.

The Navy issued a solicitation seeking construction services. The solicitation provided that offerors had to submit two proposals: a technical proposal and a price proposal. Offerors had to submit one copy of their proposals electronically, two copies hard copies, and two on CD-ROM. The electronic copy had by submitted via the DOD SAFE site, a web-based application managed by the Defense Information Security Agency (DISA).

The Navy amended the solicitation several times. The amendments extended the proposal deadline and also established different deadlines for technical and price proposals. The amendments also required offerors to use DOD SAFE Drop Link to submit their proposals.

Several offerors, including Syncon, LLC and Hourigan Construction Corp. submitted technical proposals by the December 22, 2020 deadline. Price proposals were due at 2:00 p.m. on January 19, 2021. The Navy, however, did not receive price proposals from Syncon and Hourigan by the 2:00 pm deadline. A Syncon employee had contacted that the Navy shortly before the deadline, stating that they had not received a confirmation that the company’s price proposal had been received. The Navy referred Syncon to the DOD SAFE help desk. Syncon had problems reaching the help desk. The Navy ultimately received Syncon’s proposal at 4:26 pm on January 19.

Hourigan also contacted the Navy on January 19 to report problems submitting its price proposals. Hourigan claimed it had tried to use the DOD SAFE link but the site showed that the filed could not be found. The Navy stated that it had not received Hourigan’s proposal. Hourigan emailed its price proposal the next day on January 20.

Although Syncon and Hourigan had submitted late proposals, the Navy determined that it was not prohibited from amending the proposal deadline to extend the proposal deadline. The Navy issued an amendment , extending the deadline for price proposals until January 25. The amendment allowed offerors to revise their previously submitted proposals.

Another offeror, however, filed an agency protest challenging the decision to extend the deadline. The Navy sustained the protest, reasoning that under COFC caselaw, it could not extend the deadline to accept late proposals. The Navy rescinded the amendment extending the proposal deadline to January 25. It then notified Syncon and Hourigan that it was rejecting their proposals.

Syncon and Hourigan protested with the Court of Federal Claims. The court twice remanded the case for DISA to investigate problems with the DOD SAFE site and clarify its procedures. DISA responded that there were no problems with the DOD SAFE site on January 19. Indeed, the site had receive around 2,000 successful updates that day.

Following the remands, the court considered the protester’s arguments. Both protesters argued that the agency erred in rescinding the amendment that extended the proposal deadline. They claimed their proposals were timely while the amendment was operative, and that the Navy could not rescind the amendment and retroactively invalidate their proposals.

But the court found that the Navy rationally rescinded the amendment. FAR 52.215-1 states that late proposals will not be considered. The COFC has previously held that issuing a post hoc amendment to accept late proposals would render this rule a nullity. Contracting officers are afforded considerable discretion, but that discretion does not extend to violating the FAR. The court noted that GAO has found that the there is no prohibition against an agency issuing an amendment to extend a deadline after receiving proposals. The court, however, did not find GAO’s reasoning persuasive as it failed to reference to the FAR.

Syncon and Hourigan next argued that their proposals should be accepted under exceptions to the late-is-late rule. Specially FAR 52.215-1(c)(3)(iv) provides that an agency may accept a late proposal when an unanticipated event interrupts normal governments process so that proposals could not be received in time.

The court, however, noted that the crux of both protester’s arguments was that some unanticipated event must have occurred because there was no other explanation for their inability to upload proposals. The court, however, found that these arguments were based on conjecture. There was no evidence of any unanticipated events. Thousands of submissions were submitted through the DOD SAFE site on January 19. Other offerors for this particular solicitation were able to submit their proposals., which suggested that any problems with submission were not on the government’s end.

Syncon also argued that the Navy should have accepted its proposal under the FAR’s government control exception. That exception provides safe harbor for a late proposal that  was received at the government installation designated for receipt of proposals, and was under the government’s control at the time set for receipt of offers. Relying on screenshots that showed it accessed the DOD SAFE site on January 19, Syncon argued there was enough evidence in the record to show that its proposal was within government control by the deadline.

The court disagreed. There was in fact no affirmative evidence that Syncon’s proposal was within the government’s control by the proposal deadline. To the contrary, there was significant evidence that Syncon’s proposal was not timely uploaded. The DOD SAFE site did not record a submittal from Syncon before the deadline. DISA had also confirmed that it had not timely received Syncon’s proposal.

Syncon further argued that the Navy had not undertaken a good faith investigation of the issues surrounding the DOD SAFE site. The court rejected this argument, noting that by amending the solicitation and twice agreeing to remand, the Navy had actually shown a willingness to accommodate Syncon.

Syncon is represented by Shomari B. Wade, Michael H. Gardner, Brett A. Castellat, and Christopher O’Brien. Hourigan is represented by Robert R. Korrach and Anthony H. Anikeef. The government is represented by Steven M. Mager, Brian M. Boynton, Martin F. Hockey, and Douglas K. Mickle of the Department of Justice as well as David Nimmich of the Navy.

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