When submitting proposals for federal contracts, offerors must ensure the complete proposal is delivered to the government on time, following the delivery instructions in the solicitation. In electronic submissions, the “late is late” rule places the responsibility on the offeror to ensure that its proposal is submitted ahead of the closing deadline. Notably, a limited exception to the “late is late” rule at Federal Acquisition Regulation (FAR) 15.208(b)(1)(i) permits procuring agencies to consider an electronically submitted proposal if it is received at the initial point of entry to the government servers no later than 5:00 PM one working day before the date specified for receipt of proposals. However, contractors should be mindful that the government control exception at FAR 15.208(b)(1)(ii), applicable to physical deliveries, does not apply to electronic submissions. Thus, when solicitations require proposals to be submitted electronically via email, a web-based portal, or other electronic methods, offerors must ensure that their proposals are delivered to the procuring agency via the solicitation’s designated electronic method before the time for submissions specified in the solicitation, or are received at the initial point of entry to the government servers no later than 5:00 PM, one working day before the date specified for the submission of proposals. The government may also consider a late electronically submitted proposal under FAR 15.208(b)(1)(iii) if it is the only proposal received in response to the solicitation.

In B-422899, the Government Accountability Office (GAO) issued a decision on December 12, 2024, denying a protest challenging the Navy’s decision to reject a proposal as late when the proposal submitted through the DOD SAFE portal was received by the agency over 14 minutes past the deadline. The Navy had issued the solicitation contemplating a single award indefinite-delivery, indefinite-quantity (IDIQ) contract for acquiring engineering and technical services required for its Repair Station Consoles. The solicitation required offerors to submit their proposals electronically via the web-based DOD SAFE portal by 3:00 PM ET on August 26, 2024. Interested offerors were advised that a proposal uploaded to DOD SAFE would only be considered timely when the government received an automated system-generated message stating that the file had been “dropped off” prior to the closing date and time provided in the solicitation. The RFP also included the provision at FAR 52.215-1, which warned offerors that late electronic submissions would not be considered unless the contracting officer (CO) determined that accepting the late proposal would not unduly delay the acquisition. Additionally, the late proposal must have been transmitted via an accepted electronic medium and received at the initial point of entry to the government infrastructure no later than 5:00 PM one working day prior to the submission date.

At 03:05 PM on the day the proposals were due, the protestor emailed the CO and informed him that it was facing technical difficulties uploading the proposal. The protestor notified the CO that it had started the submission process 30 minutes before and that its proposal submission team was receiving recurring error messages during the submission. The Navy received two automatic email notifications from DOD SAFE regarding the protestor’s proposal that day. The first automated notification recorded the protestor’s submission at 3:01 PM and completion at 03:06 PM, while the second automated notification regarding two additional files submitted by the protestor noted submission at 03:11 PM and completion at a little past 03:14 PM. Later that day, the CO informed the protestor that the Navy could not accept its proposal because the proposal was not received by the proposal deadline and that none of the FAR exceptions regarding late submissions were applicable. The protestor filed a timely protest with the GAO, arguing that the Navy should accept its proposal as timely submitted because it had encountered significant issues in attempting to submit the proposal, including upload terminations and an unresponsive webpage. The protestor also argued that the government control exception applied in its case. Alternatively, the protestor asserted that its late proposal should be considered because the delay in submission was caused by problems with the government information technology system and that an unanticipated event or fault with the government system disrupted normal processes.

The GAO began its analysis by addressing the protestor’s contention regarding the government control exception by pointing to previous decisions where it had determined that the government control exception did not apply to electronic submissions. The GAO explained that if the government control exception were to apply to electronically submitted proposals, FAR 52.215-1(c)(3)(ii)(A)(1) would be rendered superfluous as a late electronically submitted proposal rejected under that provision could still be considered timely under the provision concerning physically delivered proposals at FAR 52.215-1(c)(3)(ii)(A)(2). The GAO also rejected the protestor’s argument that even if the government control exception did not apply to proposals submitted via emails or similar media, it nevertheless applied to proposals submitted electronically via a web-based platform such as DOD SAFE. The protestor was again reminded of a previous protest decision where the GAO had determined that the government control exception did not apply to late proposals submitted electronically via web-based platforms. The GAO also contacted the Defense Information Systems Agency (DISA) and requested information concerning the operational status of DOD SAFE on the date of proposal submissions. In response, two DISA representatives reported that DOD SAFE was operational and available during the relevant timeframe. Finally, the GAO also noted that the Navy had received two timely proposals via DOD SAFE before the proposal deadline, one of which was received 10 minutes before the deadline. Thus, the GAO denied the protest, noting that the protestor had failed to demonstrate fault with the government system.

When transmitting proposals electronically, it is vital that offerors plan in advance and ensure strict adherence to submission deadlines. Whenever possible, offerors should ensure their proposals are received at the initial point of entry to the government servers by 5 PM, one working day before the proposal submission date. Doing so ensures the availability of the exception concerning electronic submissions in case of technical issues or difficulties. If proposals must be submitted on the day they are due, offerors should aim to submit their proposals well in advance of the deadline and make contingency plans, such as a secure backup location free of connectivity issues from which to submit their proposals. Contractors should also be mindful that the government control exception does not apply to electronic submissions. Thus, electronically submitted proposals received by the government after the deadline for proposal submissions may not be considered unless the contractor can demonstrate fault with the government system or the applicability of another exception. It is worth noting that in case of late submissions, the CO is required to promptly notify the concerned offeror that its proposal is late and whether the government intends to consider its proposal for award. Ultimately, while offerors may protest the government’s exclusion decision, taking proactive steps to ensure timeliness is far more advisable as it is generally difficult to prove government fault for late electronic proposal submissions under most circumstances.

This Federal Procurement Insight is provided as a general summary of the applicable law in the practice area and does not constitute legal advice. Contractors wishing to learn more are encouraged to consult the TILLIT LAW PLLC Client Portal or Contact Us to determine how the law would apply in a specific situation.