So You Had Email Problems While Submitting Your Proposal. Tough. The “Late is Late” Rule is a Cruel, Indifferent Mistress.

This case is fodder for contractor nightmares. The contractor attempted to email its proposal a few minutes before the proposal deadline. There was some kind of error with the email, and the proposal ended up arriving at the agency a few minutes late. The agency rejected the proposal. The contractor filed a protest, essentially saying, “Come on, the proposal was only a few minutes late. Can you cut me a little slack?” But the court, applying the late-is-late rule, essentially said, “Sucks to be you.”

Freealliance.com, LLC v. United States, COFC No. 22-132C

Background

The IRS issued an RFQ. Following an initial award and a protest, the IRS took corrective action to reevaluate quotes. As part of the corrective action, the IRS amended the RFQ. The amendment provided that revised quotations were due at 12:00 pm on January 21, 2022, and that quotations not received by the deadline would be rejected.

Shortly before 12:00 pm on January 21, FreeAlliance.com attempted to email a revised quotation but did not receive a delivery receipt. FreeAlliance sent a test message to the contract specialist . At 12:10, the contract specialist responded stating the email didn’t contain attachments. FreeAlliance resubmitted its quotation in a zip file at 12:15.

The IRS later confirmed that FreeAlliance’s initial email reached the agency at 12:06. As a result, the IRS determined that FreeAlliance was ineligible for award.FreeAlliance filed a protest with the Court of Federal Claims.

Legal Analysis

• RFQ Icluded a Late Proposal Provision – FreeAlliance argued that the initial proposal did not incorporate any of the FAR versions of the late is late rule. Moreover, while a later amendment included a late proposal provision, the amendment did not modify the initial quotation because the timing reference was on the first page of the amendment, while the amendment itself only specifically revised other identified pages. The court rejected this argument, finding that the amendment modified the entire solicitation. The fact that the initial RFQ did not contain a late proposal was irrelevant. The amendment added a late proposal provisions to the entire RFQ.
• Agency Reasonably Refused to Waive Proposal Deadline – FreeAlliance argued that the IRS should have waived the proposal deadline was a minor informality. But the court noted that an agency can only waive a deadline as a minor formality in FAR part 12 or 15 procurements. This acquisition was conducted under FAR part 8. The agency was thus required to enforce the terms of the solicitation. FreeAlliance’s proposal was received after the stated deadline. The IRS had not erred in rejecting it.

FreeAlliane is represented by Walter B. English, Jon D. Levin, Emily J. Chauncy, Joshua B. Duvall, and Nicholas P. Greer. The government is represented by Jana Moses, Brian M. Boynton, Patricia M. McCrtjy, and William J. Grimaldi of the Department of Justice as well as Jonathan D. Tepper and  Timothy G. Kelly of the IRS.