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.

The federal government may only enter into contracts through the authorized actions of its officials possessing actual authority, with the contractor bearing the burden of proving that the government official upon whose statements and actions it relied had the necessary authority to bind the government. In certain situations, however, unauthorized commitments by government officials may be subsequently ratified. In federal contracting parlance, an unauthorized commitment refers to an agreement that is not binding on the government solely because the government official who made the commitment lacked the authority to enter into that agreement on behalf of the government. Such unauthorized commitments may later be authorized by government officials with the authority to bind the government. Thus, even when a government official does not possess the express or implied actual authority to bind the government, the government may still be bound by the contract if the official’s unauthorized commitment is subsequently ratified by an official with the necessary authority. Notably, while contract disputes adjudicative forums may determine whether ratification has taken place, they do not have the authority to ratify unauthorized commitments. Ratification may be express or implicit and may occur at the individual or institutional level.

When interpreting terms of a federal contract, dispute adjudicative forums may turn to extrinsic evidence of trade practice and custom to resolve ambiguities. Trade usage refers to the use of terms or language with such regularity in a particular vocation, location, or industry that a contracting party is justified in its expectation that their technical meaning will be observed with respect to the contract. The use of trade practice and custom evidence as an interpretive device is not typically available when contractual language is plain and unambiguous on its face. However, under certain conditions, such as when a term has an accepted industry meaning different from its ordinary meaning, it may be appropriate for the dispute adjudicative forum to turn to evidence of trade practice and custom even when the contractual language is seemingly unambiguous. In such situations, the party introducing the evidence must demonstrate that it reasonably relied upon the accepted industry meaning as opposed to the ordinary meaning at the time of contract formation. In other words, the party presenting the evidence must show that the trade practice or custom genuinely reflected its intent when entering the contract, rather than serving as a post hoc rationalization for its actions.