Protest alleging that agency unreasonably failed to consider the protester’s quotation is denied. The protester emailed a timely quotation, but its email was quarantined by the agency’s system and thus never considered. While recognizing that this was unfortunate, GAO found the protester was not entitled to relief. Absent evidence of misconduct or a systemic failure, an agency is not required to consider a misplaced proposal.
Background
The National Oceanic and Atmospheric Administration (NOAA) issued an RFQ for information and data management services. The RFQ stated that proposals had to be emailed to a specific contract specialist by 2:00 pm on May 27, 2021.
AttainX, Inc. emailed its proposal to the specified contract specialist before the deadline. AttainX received a confirmation of receipt.
A few months later, AttainX emailed the contract specialist to ask about the status of the procurement. Unbeknownst to AttainX, that contract specialist had left the agency, so the company didn’t receive a response.
Later, after the agency had selected another company, Reston Consulting, for award, AttainX learned a new contract specialist was handling the contract.. This new contract specialist responded to AttainX stating that NOAA had been experiencing email problems, and that the old contract specialist had never received AttainX’s quotation.
AttainX filed a protest with GAO. As a result of the protest, NOAA investigated its email system and discovered AttainX’s proposal archived in the agency’s email system. For whatever reason, the email had been quarantined by the system.
Legal Analysis
- Protest Was Timely – NOAA argued AttainX had waited several months to confirm receipt of its quotation and thus had failed to diligently pursue its protest. NOAA contended GAO should dismiss the protest as untimely. But GAO found that AttainX had diligently pursued its protest. It had spent months trying to contact the old contract specialist, not knowing that person had left the agency.
- Agency Wasn’t Required to Consider Quarantined Quotation – GAO reasoned that absent evidence of conscious agency misconduct or of a systemic failure on behalf of the agency, a protester is not entitled to relief for a misplaced proposal. Here, there was no evidence of misconduct or systemic failure. In fact, other vendor’s quotations had not been quarantined. What’s more, the agency’s need for expeditious fulfillment of its requirements weighed against disturbing the award. In short, AttainX just had to accept its own bad luck.,
Nota bene: the RFQ did not include FAR 52.212-1(f), which sets forth exceptions where an agency may consider a late proposal. Indeed, under that provision, an agency may consider a late offer that was received by the government installation designated for receipt and was under the government’s control prior to the proposal deadline. But because the agency expressly removed this FAR provision from the RFQ, GAO declined to consider it.
AttainX is represented by Daniel J. Strouse of Cordatis, LLP. The intervenor, Reston Consulting Group, is represented by Zachary D. Prince and Aaron E. Kor of Smith Pachter McWhorter PLC. The agency is represented by James Rhoses and John L. Guinan Jr, of the Department of Commerce. GAO attorneys Christopher An and Edward Goldstein participated in the preparation of the decision.
