United States: Properly E-mailed Proposal That Never Made It To The Contracting Officer's Inbox Found Timely Submitted Under Government Control Exception

Government contractors know to follow the instructions in solicitations, particularly instructions about when and how to timely submit proposals. But, what happens if the contractor follows the solicitation's instructions to the letter and sends its proposal via e-mail to a government e-mail address but the proposal is rejected by the second in a chain of government servers before reaching the appropriate government e-mail inbox? According to the U.S. Court of Federal Claims ("COFC") (and coming the opposite conclusion of the U.S. Government Accountability Office ("GAO") on the same bid protest), the Government Control exception under FAR § 52.215-1(c)(3)(ii)(A)(2) applies and the improperly rejected proposal must be considered timely.

In Federal Acquisition Services Team, LLC v. United States, No. 15-78C (Feb. 16, 2016), Federal Acquisition Services Team, LLC ("FAST") responded to a Solicitation issued by the United States Special Operations Command ("SOCOM") for acquisition, procurement, and financial management support services. The Solicitation required that proposals be submitted "by email only to SWMS@socom.mil. . . . the max size of any files coming through on any one email is 20 MB." The proposal was due September 15, 2014 by 4:30 pm, Eastern Time. FAST e-mailed its proposal to SWMS@socom.mil at 11:56 a.m. on September 15, 2014. The proposal consisted of five files, totaling less than 18 megabytes.

The e-mail was received by the government's Defense Information Systems Agency (DISA) server, to which e-mails addressed to SOCOM are directed for security screening. Upon the completion of screening, the DISA server attempted to forward the e-mail to the SOCOM server for delivery to the SWMS@socom.mil mailbox. Delivery to SOCOM's server failed, and the DISA server generated a notification regarding the delivery failure and specifying the cause of the failure as "size limit exceeded." This notification was sent to FAST shortly after noon, just minutes after FAST had e-mailed its proposal.

FAST contacted the contracting officer ("CO") to confirm her receipt. The CO, however, informed FAST that its proposal had not been received. Because FAST's proposal was not timely received by the CO, SOCOM did not consider FAST's proposal when making awards under the Solicitation.  See FAR § 52.215-1(c)(3)(ii)(A).

Initially, FAST filed a bid protest with the GAO in September 2014 regarding the timeliness of its proposal submission. Based primarily on SOCOM's original administrative record, the GAO deemed FAST's proposal untimely received and denied FAST's protest. FAST, however, persisted and filed its bid protest with the COFC in January 2015.

After FAST filed its protest with the COFC, SOCOM submitted an amended administrative record that showed, for the first time and among other things, a pattern of server and e-mail delivery problems around the time of FAST's proposal submission involving at least seven other offerors. Many of them had submitted proposals under the 20MB size limit, yet their proposals never made it to the CO's e-mail inbox.

The COFC held:

The record shows that FAST's proposal, contained in five files that were measured to total 17.93 megabytes when e-mailed to the SWMS@socom.mil address, was received four hours and thirty-one minutes before the deadline by the first government server that processes e-mails addressed to SOCOM. After the e-mail, measured at 24.84 megabytes when received, was scanned for viruses and spam, four minutes later it was forwarded to, and was rejected by, the SOCOM server, due to its size. The record also shows that four other offerors had proposals rejected due to the size limit, although the files measured less than 20 megabytes when sent.

. . .

Here, the DISA server performed the security check and unsuccessfully attempted to forward the message to the server which could deliver it to e-mail inbox. . . . [T]he server was owned and operated by the government, and only one layer of servers stood between it and the recipient's e-mail inbox. The choice of the government to use a server located outside of the procuring agency is of no significance. Accordingly, the Court holds that when an e-mailed proposal is received by the first server designated by the government to receive e-mails directed to the address contained in a solicitation, it has been "received at the Government installation designated for receipt of offers," 48 C.F.R. § 52.215-1(c)(3)(ii)(A)(2), for purposes of the Government Control exception.

(citations omitted). The COFC sustained FAST's protest and issued a permanent injunction requiring SOCOM to consider FAST's proposal. The time for appeals in this case to the U.S. Court of Appeals for the Federal Circuit has not yet expired.

Despite the unusual holding of this case and the reversal of the GAO, contractors must still make every effort to ensure that their e-mailed proposals are timely sent and timely received by the CO, lest they violate the "late is late" rule.  See FAR § 52.215-1(c)(3)(ii)(A) ("[a]ny proposal, modification, or revision, 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 certain exceptions apply). However, in those extremely rare situations where the proposal was timely sent to a government server and the contractor can somehow demonstrate that the government was responsible for any delay in forwarding the timely filed proposal from the government server to the CO's inbox, the government may now be required to consider the contractor's proposal as timely submitted.

Disclaimer: This Alert has been prepared and published for informational purposes only and is not offered, nor should be construed, as legal advice. For more information, please see the firm's full disclaimer.

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