Moving beyond faxes into the digital age, the Court of Federal Claims in Watterson Constr. Co. v. U.S. (Mar. 29, 2011) found that a contractor’s late proposal should be excused when the delay was caused solely by a “mail storm” at the agency which overloaded and slowed down its servers. The contractor had submitted a proposal by email at 11:01 AM in advance of a 12:00 PM submission deadline. The email was “received” by the first of the Army Corps of Engineers’ servers at 11:29 AM. But, after several employees had hit “reply all” to an email sent to a large number of users, the agency’s servers experience a “mail storm” which delayed the transmission of the email from the server to the Contracting Officer’s inbox until 12:04 PM. As a result, despite earning a higher rating and being $2 million cheaper, the contractor’s proposal was rejected for having been untimely.

Judge Braden found the contractor’s untimely submission to be excused in these circumstances on three independent grounds. First, she found that the proposal was not late as it had been “received by the Government’s e-mail servers before the due date,” even if it had not yet reached the CO’s inbox. Second, even if the proposal was late, Judge Braden found unpersuasive both GAO precedent and CFC dicta to find that the FAR’s “government control” exception applied to e-mail proposals, thus excusing the contractor’s late submission. Finally, Judge Braden analogized the “mail storm” to a more traditional weather emergency, finding that it was an “emergency or unanticipated event which interrupts normal Government processes,” thus entitling the contractor to a 1-day extension under the FAR.

This final holding will likely be the most useful for contractors going forward. By demonstrating its willingness to treat network interruptions as legitimate impediments to timely filing, the CFC cracked the door for contractors whose proposals may previously have been barred as untimely.