“Educating the Government Contracting Community”

GAO Affirms Offeror’s Responsibility for Timely Receipt of Its Proposal

On November 20, 2013, the Government Accountability Office again reminded offerors that the responsibility to ensure the timely receipt of complete proposal by the agency remains at all times with the offeror. In JV Derichebourg-BMAR & Associates, LLC (B-408777), the relevant RFP instructed prospective offerors to submit proposals to the contract specialist and contracting officer by 3 p.m., Central European Time, on July 8, 2013. The protester, JVDB, sent two e-mail messages prior to the specified closing time. The first email contained JVDB’s technical proposal and the second email was supposed to contain JVDB’s price proposal, joint venture documents, and line item schedule.

However, the second email as received by the designated parties contained no such attachments and subsequent agency internal investigations revealed the “absence computer of system errors, which could have affected the agency’s receipt of JVDB’s price proposal” by the proposal deadline. Although JVDB eventually resubmitted its price proposal and other necessary documents as required by the RFP, the agency considered JVDB’s submission as untimely because the remaining proposal documents were submitted two days after the bid proposal deadline. In its protest, JVDB argued that it was “unreasonable for agency personnel not to have reviewed its e-mails--and notified it of the missing attachments--on July 8.”

In its decision, GAO, however, reaffirmed that “as an initial matter, the protester bore the burden of ensuring the timely receipt of its proposal, not the agency.” In this case, GAO argued that “JVDB has cited no law, regulation, or decision by this office--nor are we aware of any--in support of the proposition that agency personnel have a duty to review e-mailed offers for completeness prior to the proposal closing date and to notify offerors of any missing sections.” Moreover, GAO founded that “the primary cause of JVDB’s late proposal submission was the protester’s failure to attach its price proposal when it e-mailed its proposal to the agency, not the agency’s failure to alert the protester to this error.” Additionally, GAO noted that “where JVDB’s proposal was received late, it could not be considered except under limited circumstances specifically set forth in the Federal Acquisition Regulation (FAR), none of which apply in this case.” (http://www.gao.gov/assets/660/659222.pdf)

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