Public Contract Law Journal

Conflicting Bid Protest Decisions: The Split Between the Court of Federal Claims and the Government Accountability Office on Late Emailed Proposals

by Sarah Carroll
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Until recently, Sarah Carroll served as a Senior Procurement Attorney advising the Defense Information Systems Agency in Ft. Meade, Maryland. Ms. Carroll currently serves as Counsel, Federal Government Business, within Siemens Healthineers. The views expressed herein are strictly those of the author and do not represent the views of the Defense Information Systems Agency, the Department of Defense, or Siemens Healthineers.

I.   Introduction

When someone sends an email, they generally take it for granted that the email will arrive to the recipient shortly after they hit the “send” button. Most of the time, it does. Email is convenient, and it is usually fast and reliable, and, as a result, it has become indispensable for conducting business. Although government contracting officers have been using email to receive proposals from vendors competing for federal contracts since at least 2002,1 the rules governing receipt of proposals are ill-equipped to deal with transmission of proposals by email. As often happens, the law is slow to adapt to modern technology, and the federal procurement regulations governing the submission of late proposals make little sense when applied to the realities of email today. Specifically, the Federal Acquisition Regulation (FAR) establishes when a proposal is late and must be rejected, as well as certain exceptions under which an otherwise late proposal can be considered. When an emailed proposal arrives late, or not at all, the FAR governs whether the proposal must be rejected or considered. However, an ambiguity in the regulation has created an unfortunate split between the Government Accountability Office (GAO) and the Court of Federal Claims (COFC) — the only two places, other than the pro- curing agency itself, where a disappointed offeror can file a bid protest. Judge Allegra of the Court of Federal Claims has observed,

Coming before this court, with disturbing frequency, are bid protests that find defendant straining to defend agency decisions to reject, as purportedly late, proposals submitted by contractors electronically. These cases somewhat painfully illustrate the thorny issues that can arise when the outmoded provisions in the Federal Acquisition Regulations (FAR) governing the delivery of electronic proposals — which date back to the last century — are applied to modern computer technology.2

In a federal procurement, when a disappointed offeror wants to protest a contract award, the terms of a solicitation, its elimination from competition, or other agency decisions prior to contract award, it has three options: (1) it can file a protest with the agency; (2) it can file a protest at the GAO; or (3)  it can file a protest at the COFC.3 More often than not, the decisions of the GAO and the COFC can be read in harmony, but sometimes, they disagree.4 When a proposal is submitted by email, and arrives late to the intended recipient, or not at all, the GAO and the COFC have come to very different conclusions looking at the exact same regulation.

Part II of this article provides background on the jurisdiction of the GAO and the COFC to hear bid protests, as well as some notable differences between these two fora. Part III sets out the regulatory landscape from the FAR and examines the relevant GAO and COFC decisions. Part IV details some of the myriad problems created by the divergence of interpretations. Finally, Part V explores some potential solutions. Because the conflict between the GAO and the COFC regarding late emailed proposals impairs the government’s ability to act consistently and efficiently and creates an incentive for forum-shopping, this split between the two bid protest fora must be resolved. After exploring several potential solutions in this article, this author recommends that the FAR Council amend the problematic regulation to clarify the timeliness rules that apply to the submission of proposals by email and to more fairly allocate risk when an email is delayed.

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