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Offerors must be alert to the possibility of technology difficulties when electronically submitting a proposal for a federal procurement as the general rule regarding proposal submissions is that “late is late.”  GAO has heard countless cases in which proposal submission via email has presented complications.  Proposal submission via government portals has presented similar problems for offerors.

Recently, in People, Technology and Processes, LLC, B-419385, B-419385.2, Feb. 2, 2021, GAO heard a challenge to GSA’s rejection of a proposal from consideration for an order under OASIS.  The offeror, People, Technology and Processes or PTP, experienced technical difficulties while trying to submit the proposal via the GSA ASSIST online portal.  Although PTP was unable to submit its proposal, no systemic issues were reported with the portal and GSA timely received six proposals from other offerors.

In denying PTP’s protest, GAO’s decision provides three takeaways for other offerors using the GSA ASSIST portal:

The proposal must be submitted on the GSA ASSIST portal—merely uploading the proposal to the portal is not sufficient. 

GAO’s caselaw requires that an offeror deliver its proposal to the proper place at the proper time.  Delivery means that the proposal is “under the government’s control” —i.e., the offeror has relinquished custody—prior to the time set for receipt of proposals.

The solicitation required offerors to submit via the GSA ASSIST portal by 4:00 p.m. ET on the proposal due date the following: a technical proposal, a completed staffing matrix, and a price proposal with a completed pricing template.  This required offerors to manually input labor rates for each CLIN from their price proposals into the ASSIST database, and separately upload their price and technical proposal submissions.

On the proposal due date, PTP uploaded its proposal attachments (the technical proposal, price proposal, and staffing matrix), which were retained by the system at 1:46 p.m.  The fourth attachment of PTP’s proposal, the pricing template, was retained by the system at 4:00:52 p.m.  But PTP apparently never clicked on the proposal “submit” button.  During briefing before GAO, PTP complained that it faced “significant technical difficulties when entering its labor rates into the ASSIST system,” noting that “[o]ne of the exacerbating issues was the archaic requirement to hand enter voluminous CLIN entries for pricing line by line, rather than just enabling data migration from an Excel spreadsheet or uploading of an Excel spreadsheet for pricing information.”

PTP argued that since its proposal—including its final attachment, the pricing template—was retained within the ASSIST database at 4:00:52 p.m., i.e., “on” the 4:00 p.m. proposal submission deadline—its proposal was under the government’s control prior to 4:01 p.m. and was therefore timely.

GAO denied this protest ground as an offeror retains the ability to upload documents to GSA ASSIST portal—and potentially modify or revise its proposal—until the offeror presses “submit.”  So, the mere retention of PTP’s attachments in the ASSIST system did not mean that PTP’s proposal was under government control.

If possible, offerors should always strive to leave sufficient time to deal with any technical difficulties that may arise when submitting a proposal electronically via a government portal.  (As GAO noted in its decision, five proposals were submitted between 11:31 a.m. and 2:33 p.m. on the day of proposal submission, while one other proposal was received the day before the proposal due date.)  Failing that, if an offeror finds itself unable to timely submit via the prescribed method, the offeror should consider documenting the issue, such as by saving screenshots of error messages received.  One factor that seemed to have undermined PTP’s challenge was, as GAO noted, that its description of what happened “varied throughout the protest development process.”

An offeror cannot submit its proposal via email if the solicitation has not provided for email as a method of proposal submission. 

Apparently recognizing that timely submission via the ASSIST portal was not guaranteed, PTP emailed a copy of its proposal to the CO and contract specialist.  The CO received the proposal at 4:01 p.m. and the contract specialist at 4:09 p.m.  PTP therefore argued that it had timely submitted its proposal via email to the contracting officials, which was a reasonable alternate submission method given the technical difficulties it faced using ASSIST.  Per PTP, the agency did not have “‘unfettered discretion’” to reject PTP’s timely submitted proposal merely because delivery was via email rather than “’the preferred ASSIST system.’”

GAO denied this allegation as proposal submission via email was not authorized by the solicitation and no aspect of the solicitation or the FAR allowed otherwise.  (There was a separate issue with this argument, namely that the email had not been received by the CO until 4:01 p.m.)

In light of this, during the Q&A process for a solicitation requiring submission on a government portal such as the GSA ASSIST system, offerors might consider requesting that the agency designate an alternative proposal submission method (such as emailing the CO) should technical difficulties arise with the government portal.

Don’t expect GAO exceptions to the “late is late” rule to save a late proposal. 

PTP relied on AECOM Tech. Servs., Inc., B-411862, Nov. 12, 2015, 2015 CPD ¶ 353 to argue that an agency may not reject a proposal that was timely received by the agency, even if it was not submitted through a method authorized for submission of proposals.

GAO rejected this argument, explaining that AECOM was based on the following “unique set of facts” that simply were not present in this case:

  • a complete copy of a proposal was submitted to–and contemporaneously received by–the cognizant contracting personnel before the deadline for proposal submission;
  • the cognizant contracting personnel actually and contemporaneously were aware of having received it;
  • there was no significant administrative burden imposed on the agency by virtue of accepting the proposal; and
  • there was no harm in accepting the proposal, either to the integrity of the procurement system, or to the principle of fundamental fairness (this procurement contemplated the award of multiple contracts).

An offeror should not expect that such an “unusual fact pattern” will occur.

(As GAO referenced in its decision, the protester also tried relying on COFC cases recognizing the government control exception as applied to emailed proposals.  An offeror that finds itself in a situation where its proposal submitted via a government portal is deemed late should consider this caselaw and whether protesting to COFC in the first instance make sense.  But not all protests can be taken to COFC.  For example, here, the FASA jurisdictional bar prohibited PTP from challenging its exclusion from consideration for this OASIS order.)