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One thing government contracting shops are sticklers for is receiving bids by the stated deadline. Two days or two seconds late, and would-be contractors are out of luck. That’s true even if the government’s own IT systems screw up or cause the lateness. The Federal Drive with Tom Temin talked about the latest test case with Smith...
One thing government contracting shops are sticklers for is receiving bids by the stated deadline. Two days or two seconds late, and would-be contractors are out of luck. That’s true even if the government’s own IT systems screw up or cause the lateness. The Federal Drive with Tom Temin talked about the latest test case with Smith Pachter McWhorter procurement attorney Joe Petrillo.
Tom Temin: Joe in this case, a company did send their stuff and it got to the government in time and they were still out of luck. Let’s start with what the rules are for on time because they’re pretty strict.
Joseph Petrillo: The same rules apply to bids, proposals and whether or not the item being purchased is a commercial product or service. The solicitation will designate someone to receive the bid or proposal and a deadline for that receipt. And unless it’s received by that person at before that time, the bid or proposal is considered late. Now there are three exceptions to considering a bid or proposal that’s late, they will apply so long as the bid or proposal is in fact received before award and accepting it wouldn’t unduly delay the acquisition.
The first exception is that it was the only proposal received at all. And that’s obviously going to be a pretty rare case. The second exception is that it was received at the designated government installation, and was under the government’s control prior to the deadline and continued to be under the government’s control. The third exception is if the solicitation authorizes an electronic submission and the bid or proposal was received., and I’m going to quote here, “at the initial point of entry to the government infrastructure not later than 5 p.m. one working day prior to the date specified,” for the receipt of bids or proposals. So those are the three exceptions.
Tom Temin: And this has been the case for a long time and one vendor thought they might be able to get the GAO (Government Accountability Office) to change the rules a little bit. What happened?
Joseph Petrillo: The situation arose in the context of a procurement of audio visual support to be used by the Food and Drug Administration. And one offeror, VERSA Integrated Solutions, submitted its proposal as required by email to the contracting officer, prior to the deadline, sent out prior to the deadline. When it didn’t hear back after a while, it got in touch with the contracting officer and asked about the status and was told its proposal hadn’t been received. So they checked their logs and sent in logs from their server indicating that they had in fact sent that.
Tom Temin: The company sent in its logs.
Joseph Petrillo: The company sent its logs. So when the contracting officer got that information from VERSA, it asked its IT department what happened. And a week later, the IT department reported that, in fact, the email had been received by the government’s system before the deadline, but it had been quarantined, because the proposal that had been attached contained macros. And that was the, you know that that was fatal under the government system.
Tom Temin: So basically it went into the trash folder or the spam folder?
Joseph Petrillo: Basically, that’s what happened. And the contracting officer said, well, sorry, your proposals late, can’t be considered. We’ve moving on with a procurement.
Tom Temin: Yes. So that would seem like they met the rule because it was in the government systems that 24 hours before the deadline as stated for electronic transmissions. We’re speaking with Smith Pachter McWhorter procurement attorney Joseph Petrillo. What happened when they protested?
Joseph Petrillo: Well, they protested to the Government Accountability Office and said exactly what, made that same argument that you’ve just mentioned you got it was under your control. And it was before the deadline. Why can’t this be considered? They recognized, VERSA recognized that GAO had previously held that exception does not apply to submissions which are sent electronically. The only one exception that does apply the exception that does apply in that instance, is the one we went over in which it has to be received by the government infrastructure a day before the deadline. And it wasn’t, it was the day of the deadline. So that didn’t work. VERSA said, you know, you’ve had this rule for a long time GAO, but please change it because we think it’s not fair and excluding us from competition. And GAO said, nope, we’re not going to do that. And continued to stay with a line of cases it has had going back around 20 years.
Tom Temin: Just to clarify, the company sent it on the deadline day and not the day before, as is required to be on time for electronic submissions?
Joseph Petrillo: Right, exactly. So now we’ve got a situation where the company sent its proposal in hoping it would get there. It was received by the government system, and problems with the government system kept it from being considered. We’ve got a system I think that doesn’t really work in the 21st century.
Tom Temin: It sounds like the 24 hour ahead of the deadline rule, dates back to when systems were less reliable or they were slower. And we didn’t have all of these instant systems and fast internet that exists today.
Joseph Petrillo: That’s exactly right. In fact, that rule dates back to when proposals were submitted by couriers, express mail, for instance. And, you know, they didn’t want to trust express mail. So they said, send it in a day before the deadline for receipt the day before the deadline, and we’ll consider it if it gets here. You know, at this point, you’ve got to think that there have to be better solutions to this. Why aren’t offerors told that their proposals are going to be quarantined if they contain macros? Why isn’t there a system that tells the proposer your submission has been received? We get that in electronic commerce all the time. Why isn’t the contracting officer told that an email to you is being quarantined might be something important, like a proposal? There ought to be technological solutions to this, maybe there should be a single point of entry, but there isn’t. And as a result, people will lose out on bidding opportunities through no fault of their own, really.
Tom Temin: And what would happen if the contracting officer just decided to consider that bid anyway, and it was a great bid. And they got the award, even though technically, the thing came 23 hours before the deadline, and not 24 hours before the electronic deadline?
Joseph Petrillo: Well, if the GAO at least, it seems that the they would stand the risk of having their award overturned, because GAO is saying that the exception we talked about for receipt of the government installation does not apply to electronic submissions.
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Tom Temin: Yeah, or another losing bidder that was on time could say, could protest saying this contracting officer violated the rules of on time, if it knew about that.
Joseph Petrillo: Exactly. That’s the risk that the agency would be taking it seems, and I’m not sure this is really a problem with the regulations so much as it’s a problem with the systems but somehow it just doesn’t seem fair that differences in the government systems and architecture, cause this kind of problem.
Tom Temin: All right. So if the deadline for solicitations is 5 o’clock on Friday, again, electronically, you got to have it there 5 o’clock Thursday.
Joseph Petrillo: Yeah, it’s assuming it’s 5 o’clock is the deadline, actually, the regulations provide a default time of receipt, which is 4:30, not 5 o’clock.
Tom Temin: All right. So send it, just to be safe send at 4:30 on Wednesday, and then you’re two days ahead.
Joseph Petrillo: That would seem to be the most prudent case and you know these, bidding deadlines can be tight as it is and losing a day can be a problem, but that seems to be where things are right now.
Tom Temin: Joe Petrillo is a procurement attorney withSmith Pachter McWhorter. Thanks so much.
Joseph Petrillo: Thank you, Tom.