Punctual people often live by the maxim: “If you’re early, you’re on time. If you’re on time, you’re late.” When submitting electronic proposals under FAR 52.212-1, those are words to live by. Even if you submit your electronic proposal on time, and even if it reaches government servers before the proposal deadline, it might still be considered late if it gets caught in the agency’s spam folder or email quarantine.
This was exactly the case in VERSA Integrated Solutions, Inc., B-420530 (Apr. 13, 2022). VERSA, an 8(a) small business, submitted an electronic proposal under an RFP seeking audio and visual support services for the Department of Health and Human Services. The RFP established two phases. Phase 1 required electronic submissions on corporate experience and technical approach by 12pm ET on November 12, 2021 to an agency email address. HHS would then evaluate Phase 1 proposals to decide who would advance to Phase 2. There was no dispute that VERSA submitted its Phase 1 proposal to the agency email address prior to the deadline. Three months later, VERSA asked HHS for an update and was told that its proposal was never received. Following an investigation on the agency’s end, HHS determined that VERSA’s proposal was quarantined by the government’s email server because it contained macro files that can contain malicious code.
One might think that would resolve the matter. VERSA’s proposal clearly reached the government’s server before the deadline but was quarantined and did not arrive to the CO for reasons beyond VERSA’s control. So VERSA’s proposal should be evaluated to proceed to Phase 2, right? Not according to GAO.
GAO noted that offerors bear responsibility for getting their proposals “to the proper place at the proper time.” Although VERSA seemingly did that here, GAO noted that FAR 52.212-1(f) requires that electronic proposals be submitted early to not risk being late. Specifically, FAR 52.212-1(f)(2)(i)(A) requires that electronic proposals be submitted by 5:00pm one working day prior to the proposal deadline:
Any offer, modification, revision, or withdrawal of an offer received at the Government office designated in the solicitation after the exact time specified for receipt of offers is “late” and will not be considered unless it is received before award is made, the Contracting Officer determines that accepting the late offer would not unduly delay the acquisition; and —
- If it was transmitted through an electronic commerce method authorized by the solicitation, it was received at the initial point of entry to the Government infrastructure not later than 5:00pm one working day prior to the date specified for receipt of offers . . . .
VERSA did not meet the one-day prior deadline. They submitted their proposal on time, but not early. And when it comes to electronic proposals, if you’re only on time, you’re late.
For those who have encountered this situation before with hard copy proposals, you may have found that all you had to do was provide evidence showing that the proposal was under the government’s control prior to the proposal deadline. That is because, at least on its face, FAR 52.212-1(f) makes a distinction between electronic transmission and hard copy submissions. Subpart (A) of the provision (copied above) deals with electronic submissions, so those proposals do not get the benefit of the language in subpart (B). GAO has consistently recognized this distinction since 2002. VERSA asked GAO to reconsider its position on this point but GAO declined.
So the next time you find yourself submitting an electronic proposal on a solicitation for a commercial item, send the proposal one day early just in case.