When It’s Too Late To Say Late Is Late
February 27, 2014
By: Lindsay Simmons
GAO recently affirmed its position that the standard for late proposals does not generally apply to requests for quotations (RFQs). Gartner, Inc., B-408933.2; B-408933.3 (Comp. Gen. Feb. 12, 2014). The interesting part of the decision is GAO’s refusal to weigh in on whether a quote is late when it is due by 9:00 am and received by the agency’s servers before 9:01 am but not received by the contracting officer (CO) until after 9:01 am. Instead, GAO focused on the difference between RFQs and RFPs and the fact that an RFQ which requests quotes by a certain date and time does not establish a firm closing date and time absent an express late quotation provision.
Here, although the awardee’s final proposal was received by the CO after 9:01 am, GAO decided that a post award protest was too late for the protestor to claim the awardee’s proposal was late. Why? Two reasons:
First, according to GAO, if a solicitation contains ambiguous terminology with respect to whether it is an RFQ or an RFP, the protestor must seek clarification prior to the due date for responding to the solicitation that contains the ambiguity. Here Gartner waited until it was a disappointed bidder and, thus, its protest was untimely.
Second, where an RFQ contains the agency’s statement that it will “not grant any extensions” to the deadline for submissions, but does not contain an express provision regarding late submissions, the agency has not expressly established that it will not consider quotations received after the submission deadline. Thus, here, the agency’s decision to consider a proposal received after the deadline was not inconsistent with the terms of the RFQ. Again, any ambiguity regarding the deadline for submissions would have to be resolved in a pre-proposal protest.
Left for another day is the issue of whether an electronic submission received by the agency’s email servers, but not the CO’s email inbox, prior to the deadline (i.e., prior to 9:01 am) would be timely had there been an express late quotation provision or had this been an RFP. As previously discussed here, the Court of Federal Claims (COFC) recently addressed this issue (although under slightly different circumstances), but GAO has not had the opportunity to address it since the COFC’s decision. Although this protest looked ripe for the taking, we’ll just have to wait until next time.
Lindsay Simmons is the attorney responsible for the content of this article.
© Jackson Kelly PLLC 2014