Protest challenging agency’s rejection of a late proposal is denied. The protester uploaded its proposal to the online portal specified in the solicitation, but the portal shut down before the protester hit the submit button. The protester emailed its proposal, and the government received the emailed proposal within one minute of the proposal deadline. But the agency rejected the proposal as late. The protester argued the agency should consider its proposal because it had been uploaded to the portal before the deadline. GAO reasoned that even if uploaded, until the proposal was actually submitted, an offeror could modify it, so it was not in the government’s control. What’s more, even if the protester had problems uploading its proposal, there was no evidence of systemic failure of the portal, which would obligate the agency to consider a late proposal. The protester further argued the government should consider its emailed proposal. But GAO rejected this argument because the solicitation did not permit emailed submissions.
The General Services issued an RFP to small business holders of the One Acquisition Solution for Integrated Services IDIQ contract. The RFP sought support for the Army’s mission command product distribution. The RFP provided that proposals had to be received by 4:00 p.m. EST on October 13, 2020. Proposals had be submitted via GSA ASSIST, the agency’s online proposal submission portal.
On the afternoon of October 13, People, Technology and Processes, LLC (PTP) logged on to the ASSIST system to submit a proposal. PTP uploaded its proposal, but before the company could hit the “submit” button, the system shut down. Realizing that it could not log back on and re-upload all the data before the proposal deadline, PTP emailed its proposal to the contracting officer. PTP stated in the email that it had problems uploading the proposal using the ASSIST system. The contracting officer received the emailed proposal at 4:01. GSA, however, declined to consider PTP’s proposal. PTP protested.
A protester bears the burden of showing that its proposal was properly delivered to the agency at the specified address. An agency is not required to consider a proposal where there is no evidence it was actually received.
PTP argued that its proposal was not late because it had been received and was under the government’s control at 4:00:52 p.m., at which time PTP’s final proposal attachment had been retained in the ASSIST database. But GAO noted that a proposal is only under the government’s control when an offeror has relinquished custody. Here, PTP had uploaded its proposal to the system. But even when a proposal has been uploaded, it is still considered in progress until it has been submitted. Indeed, in the ASSIST system, up until a proposal has been officially submitted, an offeror has the ability to upload new attachment and potentially modify its proposal. While PTP uploaded its proposal, it never hit the “submit” button. Thus, the proposal was never actually received by the government through the ASSIST portal, which was the only method of submission designated by the RFP.
PTP also argued that it had timely submitted its proposal via email. PTP contended that given its technical problems with the ASSIST system, email submission was a reasonable alternative. GAO, however, reasoned that email submission were not authorized by the RFP. Thus, GSA reasonably declined to consider the emailed proposal.
PTP also argued that its proposal should be considered under FAR 52.215-1(c)(3)(ii)(A)(2), which provided an exception to the late-is-late rule when (1) the agency received the proposal before award, (2) accepting the proposal would not unduly delay the acquisition, and (3) there is evidence the proposal was under the government’s control at the proposal deadline.
GAO found this exception did not apply. First, as noted, PTP’s proposal was not under the government’s control before the proposal deadline. Moreover, this exception does not apply to electronic submissions. Rather, electronic submissions are governed by another FAR provision, which provides that the proposal must be received at a government point of entry by 5:00 p.m. one business day before the proposal deadline. No one disputed that PTP’s proposal was not received by the government one business day before the deadline.
Lastly, PTP alleged that even if its proposal was late, GSA was aware of problems with the ASSIST system and thus should have considered the late proposal. An agency may be required to consider a proposal when there has been a systemic failure of an online government portal. Here, however, there was no evidence of a systemic failure. No other offeror reported problems with the system. In fact, GSA time received five other proposals through the system. PTP’s problem was its decision to not begin uploading its proposal until well into the afternoon of the proposal deadline.
PPT is represented by Craig A. Holman and Nathaniel E. Castellano of Arnold & Porter Kaye Scholer LLP. The agency is represented by Kathleen K, Barksdale of GSA. GAO attorneys Kasia Dourney and Evan Williams participated in the preparation of the decision.
