Protest alleging that agency unreasonably extended the proposal deadline after another offeror had problems submitting a timely proposal is denied. The protester contended the other offeror had submitted a late proposal. Thus, the protester argued, that offeror was no longer part of the procurement, and the agency should not have extended the deadline to give this offeror a second chance. The agency argued that that deadline was proper under two exceptions to the late-is-late rule. The court, however, found that those exceptions did not apply. Based on the administrative record at the time the agency extended the deadline, the agency believed that the submission issue was due to the offeror’s email configuration, not a problem with the agency’s network. Based on the information before it, the offeror had not timely submitted a proposal, and the agency erred in extending the proposal deadline. Nevertheless, the court could not find the protester had been prejudiced by the error. The protester had not shown how would be harmed by having to still compete against the other offeror.
The Defense Logistics Agency awarded a contract for food distribution services to KGL Food Service in 2018. Following the award, protests were filed, and DLA took several corrective actions. In May 2020, as part of a corrective action, DLA opened discussions with offerors and set a deadline for proposal revisions on May 22, 2020. Offerors were required to submit electronic copies of their proposals.
Intermarkets Alliance submitted its revised proposal two hours before proposal deadline. DLA, however, did not receive the proposal. DLA’s technology support staff concluded that the problem was with Intermarkets’ email configurations. On May 26, 2020, the contracting officer informed Intermarkets’ representative that there was an issue with the company’s email configuration that had prevented DLA from receiving the proposal. Intermarkets provided the contracting officer with screen shots showing that it had emailed its proposal on May 22.
Although DLA believed Intermarkets’ submission issues were due to the company’s email configuration, on May 28, 2020, the contracting officer emailed all the offerors and stated that DLA had ongoing internal network issues. As a result, the contracting officer set a new proposal deadline of June 1, and instructed offerors to submit revisions through the DoD Safe website. Moreover, while DLA expected that submissions would be identical to the May 22 submissions offerors were allowed to make additional revisions to the June 1 submissions.
Following the extension of the proposal revision deadline, KGL filed a protest with the Court of Federal Claims. KGL alleged that the contracting officer had abused her discretion in extending the proposal deadline and that any proposals not submitted by May 22 should be excluded from consideration.
Shortly after the protest was filed, DLA reported that it had located records showing that Intermarkets had indeed submitted its proposal in time, but the agency’s server had quarantined the emails.
In its protest, KGL maintained that Intermarkets’ revised proposal had been late and thus should not be considered under the late-is-late rule, which is codified at 52.212.-1)f)(2)(i). Under that rule, late proposals shall not be considered by an agency unless certain listed exceptions apply. As the Federal Circuit has held, submitting a late proposal is tantamount to no proposal at all. Thus, KGL argued, Intermarkets had effectively not submitted a proposal and was not longer party to the procurement. DLA therefore erred in extending the deadline and giving the company a chance to submit a new proposal.
The government argued that two of those exceptions applied. Before considering the exceptions, however, the court addressed the scope of its review. The focal point of the court’s review of an agency decision is the administrative record in existence at the time of the decision. Thus, the court reasoned, its analysis in this case had to center on the information before the contracting officer at the time she decided to extend the proposal revision deadline.
Here, the record showed that at time the contracting officer extended the deadline, the problem was with Intermarkets’ email configuration, not DLA’s network. The court opined that the contracting officer’s contemporaneous understanding of the issue was at odds where her explanation to offerors when she informed them of deadline extension, stating that the problem was due to internal DLA network issues. To be sure, DLA had later discovered that its own system had quarantined the emails. But that information was not part of the record at the time the contracting office extended the proposal deadline.
With this framework in mind, the court turned to the exceptions to the late-is-late rule. The government first asserted that the extension of the proposal deadline was justified under the systemic failure exception to the late-is-late rule. Under that exception, a late proposal may be considered when there is a systemic failure resulting in multiple instances of lost information. The government contended that multiple offerors, including Intermarkets, had encountered problems submitting their proposals.
But the court found that there was no indication of a systemic failure, and certainly not a failure of which the contracting officer was aware of when she extended the proposal deadline. The government had not identified any evidence in the record—that was before the contracting officer at the time she extended the deadline—to support her assertion that the problem was caused by DLA’s network.
The government also alleged that the government control exception applied. That exception allows an agency to accept a late proposal when: (1) the offer is received before award, (2) consideration of the offer would not delay the acquisition, (3) the offer was received at the government installation designated for receipt of offers, and (4) the offer was under government control at the proposal.
The court, however, found that considering only the documents that were before the contracting officer when she extended the deadline, the third and fourth elements of the government control exception were not satisfied. There was no indication in the record that the proposal had been received or was under government control at the time the contracting officer extended the deadline. At most, the contracting officer had screenshots showing that Intermarkets had attempted to submit its proposal. Alas, those screenshots alone did not demonstrate that DLA had received the proposal. It was not until seven weeks later that DLA discovered it had actually received the proposal.
Thus, the court found that Intermarkets had sent a late a proposal and thus that DLA erred in extending the proposal deadline to give the company a second chance. The court next considered whether KGL had been prejudiced by this error. KGL contended that it was prejudiced by having to compete against Intermarkets, which should have been eliminated due to its late proposal.
The court concluded there was not enough evidence in the record to support KGL’s theory. The parties had not presented anything to show that the agency was required to eliminate Intermarkets from the competition, or that the agency was prohibited from evaluating Imtermarkets’ most recent, timely-submitted, June 1, 2020, proposal. What’s more, the contracting officer decision to extend had applied to all offerors. The fact that KGL did not take advantage to submit a revised a proposal did not make the decision unfair.
KGL is represented by John E. McCarty, David C. Hammond, Mark A. Ries, James G. Peyster, Robert J. Sneckenberg, Charles Baek, Jared Engelking, Gabrielle Trujillo, and William B. O’Reilly. Intervenor Intermarkets is represented by Neil H. O’Donnell, Jeffrey M. Chiow, Stephen L. Bacon, and Emily A. Wieser. Intervenor ANHAM FZCO is represented by Richard P. Rector, Dawn E. Stern, C. Bradford Jorgensen, and Thomas E. Daley. The government is represented by Daniel S. Herzfeld, Ethan P. Davis, Robert E. Kirschman, Jr., and Douglas K. Mickle of the Department of Justice as well as Daniel K. Poling, Gale Furman, R. Zen Schaper, and Cathleen Chroromanski of the Defense Logistics Agency.
