Two recent decisions, one from the Government Accountability Office and another from the Court of Federal Claims demonstrate the deference afforded to agencies in accepting late proposals.
In VERSA Integated Solutions, Inc., the protester submitted a proposal, but the proposal got stuck in the agency’s email quarantine, never reached the contracting officer, and, thus, the protester was never considered for award. The protester argued that the agency shouldn’t have rejected its proposal because it submitted the proposal before the deadline and the agency had control over it, albeit in quarantine. GAO denied the protest, stating that it would not relax the late is late rule because doing so would undermine FAR clause 52.212-1, which governed the submission of proposals.
When “Late is Late” and When It Isn’t
This decision comes on the heels of Savantage Financial Services, Inc. v. United States, a bid protest at the Court of Federal Claims. Like the solicitation in VERSA, the solicitation in Savantage also included FAR 52.212-1. Here, however, while offerors submitted initial proposals on time, two offerors were late in submitting proposal revisions. Despite being late, the agency made award to these two late offerors. The protester argued that the agency should have rejected the revisions, pointing to the late is late rule. The court rejected this argument, holding that, although the late is late rule is strict, the contracting officer had discretion to waive the deadline for the late proposal revisions, and under that discretion the determination that the revisions were minor, was reasonable.
Ultimately, agency discretion is paramount. The juxtaposition of these two cases emphasizes, once again, the importance of proper and timely submission of offers, while also underscoring that even the “late is late” rule may bend to the discretion of a contracting officer.