The general rule regarding late proposals is that offerors are responsible for ensuring that their proposals reach the designated location by the time stated in the solicitation. A late proposal will not be considered unless it falls under a recognized exception in the Federal Acquisition Regulation (FAR) or common law. One exception in the FAR allows for acceptance of a late proposal where some emergency or unanticipated event interrupted normal Government processes preventing it from being delivered on-time. FAR § 52.212-1(f)(4).
This particular exception was addressed recently by the Court of Federal Claims, in which the Court examined the scope of the interruption of "normal Government processes" exception. In Global Military Mktg v. United States, No. 14-622C, (Williams, J.)(Sept. 29, 2014), the Plaintiff encountered a rather unique and unfortunate situation regarding the delivery its proposal. The Plaintiff attempted to use FedEx to make its delivery, however the region in which Plaintiff (and the FedEx facility) was located experienced a "historic rainfall event," which caused the FAA to restrict traffic at local airports.
The Plaintiff attempted to deliver its proposal through other means, but was not able to do so prior to the deadline. The Plaintiff argued to the Court that its late proposal should have been accepted because by restricting airport traffic, the FAA interrupted "normal Government processes." The Court did not sympathize with the Plaintiff's plight and dismissed the protest.
The Court stated that the particular FAR exception at issue does not concern unforeseen events preventing the offeror from submitting its proposal. Rather, the exception focuses on whether unforeseen events prevent the procuring agency from receiving proposals at the designated site. Thus the Court determined that in order for the interruption of "normal Government processes" exception to apply, the interruption must take place at the agency's location, not the offerors. Because there was no emergency or unanticipated event at the procuring agency's facility, the agency was open and able to receive offers at the designated location, leaving the FAR exception inapplicable to the Plaintiff's situation.
The Plaintiff also argued that the "common law" exception to late proposals was applicable to this case. The "common law" exception, recognized by GAO and the Court of Federal Claims, provides that an agency may consider a late proposal if government misdirection or mishandling was the paramount cause of the delay and considering the proposal will not compromise the competitive process. The Court rejected this argument, as well, stating there was no evidence that the agency misdirected or mishandled the Plaintiff's proposal.
Obviously the takeaway from this case is for contractors to do whatever they have to do to ensure their proposals make it where they need to go before the deadline. However, unforeseen events are going to happen from time to time which might make an on-time delivery next to impossible. This case makes it clear that when those unforeseen events do not occur at the agency's location, arguing for acceptance of a late bid will likely prove futile. Knowing the rules and exceptions regarding late proposals can assist companies in effectively determining whether it is a good idea to protest rejection of a late proposal.
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