Acceptance of Late Proposal Exception In GAO Bid Protest Rules

When it comes to GAO acceptance of late proposal submission exception in bid protests, many contractors wonder what happens if their Request for Proposal (“RFP”) submission is late and if there are any exceptions that allow for relief.  While it is an offeror’s responsibility to deliver its proposal to the proper place at the proper time, there are a few exceptions when a late proposal submission may be accepted or should be accepted, giving you grounds for a bid protest.

• Make sure that your team budgets time for adequate proposal preparation.
• Make sure that you have the correct address to send the proposal.
• Do not totally rely on UPS or FedEx to deliver your package on time.

General Rule Acceptance of Late Proposal Submission

Typically, late proposal submission would not allow the agency to  consider the bid for award.  See FAR § 15.208(a).  The ‘ acceptance of late bid submission rule’ helps reduce confusion, ensure equal treatment, and prevent one offeror from receiving a competitive advantage over others.

Improper Rejections of Proposals; Minor Informality

The contracting agency does make mistakes and has improperly rejected proposals under the late proposal submission rule. In Tishman Construction, Corp., the Government Accountability Office (“GAO”) found the agency improperly rejected the protestor’s proposal as late.  The RFP solicitation required both electronic and paper submissions of the proposals.  In Tishman, the protestor submitted a timely electronic version, but the identical paper version was received 73 minutes after the specified time.  

The GAO found the rejection unreasonable and inconsistent with the acceptance of late proposal submission rule because the agency did receive a complete copy of the electronic version before the deadline.  The late delivery of the paper version was declared a ‘minor informality’ that should have been waived.

In another case, Abt Associates, the RFP required offerors to send their proposal to two different offices.  The protestor’s proposal arrived to one office by the deadline, but not the other.  Because the offeror had timely submitted an identical proposal, the offeror gained no advantage, and no harm to the competition would result from considering the late proposal, the late delivery to the second office should have been waived as a minor informality.

• Although GAO allows for the “minor informality rule,” make sure that your compliance matrix and proposal management practices minimize reliance on the rule.

FAR Exception to the Acceptance of Late Proposal Submission Rule

FAR § 52.212 allows for acceptance of late proposals to be considered if:

• The proposal is received before the award is made
• The Contracting Officer determines that accepting it would not unduly delay the award, and
• Either:
  • If transmitted electronically through a method authorized by the RFP/solicitation, it was received no later than 5:00pm one working day prior to the specified deadline, or
  • There was acceptable evidence that it was actually received and under the government’s control before the deadline, or
  • It was the only proposal received

It also permits an agency to accept a late modification at any time if an otherwise successful proposal edits its terms to be more favorable to the government.

Common Law Exception in Bid Protest Litigation

In addition to the FAR exceptions, the Court of Federal Claims and the GAO recognize a common law exception to the acceptance of late proposal submission rule. 

The exception provides that “a late proposal may be considered if government misdirection or mishandling was the paramount cause of the delay and consideration of the proposal would not compromise the competitive process.”  Global Military Marketing, Inc. v. United States (2014).  If a bidder has done all it could, it should not suffer from a late proposal simply because the government failed in its own responsibility. 

However, if a late proposal submission would compromise the competitive system, it likely will not be considered, even if the government made delivery late or impossible.  One example where the government was found to be the paramount cause of the late submission was in Palomar, where the solicitation instructions specified the wrong zip code for bid delivery.

Although most bids and proposals must be submitted on time to the specified site, there are a few circumstances when preserving competition by considering an acceptance of late proposal submission is more important than rejecting it.

• You want to make sure that government checkpoints do not delay delivery.
• If you are located closer to the agency, consider hand delivery.

If you need help or have questions regarding acceptance of late proposal submission, please call our GAO bid protest lawyers at 1-866-601-5518.