The Government Accountability Office (GAO) recently affirmed that when a proposal has been submitted by an electronic commerce method, a proposal not received by the agency by the submission deadline can only be considered for award if:

• The contracting officer determines accepting the proposal would not unduly delay the acquisition, and
• The electronic proposal was received at the initial point of entry to the government infrastructure no later than 5:00 p.m. the preceding working day.

In ICS Nett, Inc., B-422575 (Jul. 24, 2024), ICS Nett, Inc. challenged the Missile Defense Agency's (MDA) decision to reject its proposal as late.¹ The facts of the decision are simple. Proposals were due at 5:00 p.m. on January 17, 2024. ICS Nett electronically submitted its proposal through the Department of Defense's (DoD) Procurement Integrated Enterprise Environment (PIEE) Solicitation Module at 5:02 p.m. All of ICS Nett's documents had been uploaded to the PIEE system prior to 5:00 p.m., but due to secondary security protocols requiring use of an additional password process, the proposal was not fully submitted to MDA by ICS Nett's project manager until after the deadline. 

ICS Nett argued to GAO that its proposal should have been considered timely pursuant to Federal Acquisition Regulation (FAR) 52.215-1, which provides an exception to the prohibition against considering late proposals if the proposal was under the government's control prior to the time set for the receipt of offers. ICS Nett argued that because its proposal documents had been uploaded to PIEE prior to the 5:00 p.m. deadline and only agency additional security protocols frustrated the process, it was timely or an exception to the late-is-late rule should apply. GAO disagreed and reaffirmed its prior decision in Sea Box, Inc., B-291056 (Oct. 31, 2002) that the government control exception does not apply to electronic submissions. Rather, in order for late received electronic proposals to be considered, it must have been received at the initial point of entry to the government infrastructure no later than 5:00 p.m. one working day prior to the date specified for the receipt of proposals. GAO reasoned that if electronic submissions were eligible for the government control exception regardless of whether they were received the prior working day, it would effectively nullify the requirement that electronic submissions must be received by the government no later than 5:00 p.m. one working day prior to the deadline. Thus, ICS Nett's proposal was properly deemed untimely because its proposal was not received by the government by 5:00 p.m. on the prior working day.

Key Takeaway

This decision serves as a reminder to contractors to ensure they are giving themselves enough time to submit any electronic proposal at least 24 hours before the stated deadline. For solicitations that incorporate FAR 52.215-1, a proposal received even two minutes after the deadline is late and will not be considered. This is further underscored by the fact that GAO will look at how long before the deadline the offeror began submitting its materials. GAO noted in the decision that the first attempt to finalize the submission by ICS Nett occurred at 4:58 p.m., only two minutes before the deadline. According to GAO, this was the paramount cause of the lateness, meaning that even if ICS Nett could have proven it encountered technical difficulties in submitting its proposal, GAO still would have denied the protest because the offeror started the submission process so close to the deadline and that was the primary reason that the proposal was late.

If you have any questions about the ICS Nett decision or GAO protests generally, please contact one of the Miller & Chevalier attorneys listed below:

Scott N. Flesch, sflesch@milchev.com, 202-626-1584

Alexandra S. Prime, aprime@milchev.com, 202-626-5940

Jason N. Workmaster, jworkmaster@milchev.com, 202-626-5893

Alex L. Sarria, asarria@milchev.com, 202-626-5822

Ashley Powers, apowers@milchev.com, 202-626-5564

Connor W. Farrell, cfarrell@milchev.com, 202-626-5925

***********

¹Under an agreement with the U.S. Army Legal Services Agency, the U.S. Army's Contract Litigation and Intellectual Property Division at Fort Belvoir routinely defends protests filed against MDA procurements.  

The information contained in this communication is not intended as legal advice or as an opinion on specific facts. This information is not intended to create, and receipt of it does not constitute, a lawyer-client relationship. For more information, please contact one of the senders or your existing Miller & Chevalier lawyer contact. The invitation to contact the firm and its lawyers is not to be construed as a solicitation for legal work. Any new lawyer-client relationship will be confirmed in writing.

This, and related communications, are protected by copyright laws and treaties. You may make a single copy for personal use. You may make copies for others, but not for commercial purposes. If you give a copy to anyone else, it must be in its original, unmodified form, and must include all attributions of authorship, copyright notices, and republication notices. Except as described above, it is unlawful to copy, republish, redistribute, and/or alter this presentation without prior written consent of the copyright holder.