In a recently unsealed decision, Judge Damich of the Court of Federal Claims sustained a pre-award protest by The Electronic On-Ramp, Inc. (“EOR”), finding that the Defense Intelligence Agency (“DIA”) improperly rejected EOR’s bid as late where, although an electronic copy was timely received and the paper copy arrived at the base where DIA is located prior to the submission deadline, transfer of physical possession did not occur until after the deadline for receipt of proposals.
In this competition, the RFP required offerors to deliver an electronic copy of their proposals by e-mail as well as a paper copy by hand delivery to the DIA office on Joint Base Anacostia-Bolling. An hour before the deadline for submissions, EOR submitted its proposal to DIA via e-mail and sent a courier to deliver the paper proposal to DIA’s office on base. Although the courier arrived prior to the submission deadline, he was barred from entrance by base security as his military id was expired. EOR contacted the Contract Specialist who agreed to send someone to retrieve the paper proposal. Due to a miscommunication as to the location of the courier, the actual transfer of possession of the proposal to the Contracting Officer did not occur until after the deadline for submission. As such, the Contracting Officer rejected EOR’s proposal as late.
In his decision, Judge Damich analyzed the language of FAR 15-208 and 52.215-1 as well as the common law government misdirection exception recognized by the Court to determine that DIA improperly rejected EOR’s proposal. Based on the facts that EOR’s proposal was properly submitted via e-mail, the courier arrived prior to the deadline, and DIA acknowledgedthat the courier was present and it had timely received the e-mail version, Judge Damich found that DIA should have considered this a timely submitted proposal.
In rejecting the finding of the Contracting Officer, Damich noted that the focus should not be on the delivery of the paper copy but instead the accompanying facts including whether the delay actually benefitted the offeror. He stated that “[a]lthough submission deadlines typically are strictly enforced, the late proposal rule is not a draconian provision,” citing the explicit exceptions provided for in FAR 15.208. Specifically, Judge Damich found that EOR’s paper proposal was “under the government’s control” prior to the deadline for submissions, rejecting the argument that the Government must have physical possession of the proposal to meet this exception. As such, the Court found that DIA should have waived the late delivery as a minor informality.