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Government Had Control of Proposal in Courier's Possession

The rejection of a proposal as untimely was arbitrary, capricious, or an abuse of discretion, the Court of Federal Claims held, because the contracting officer should have considered the proposal under the government control exception to the late proposal rule. Under the request for proposals for intelligence analysis support and related services, offerors were required to deliver copies of their proposals to a military base by both courier and e-mail. The protester submitted its e-mail version one hour prior to the submission deadline. The protester's courier arrived at the base with the paper version 35 minutes before the deadline, but base security denied him entry. The protester then contacted a contract specialist, who told the protester she would send someone to pick up the proposal. Due to a miscommunication about where the courier was waiting, the courier did not give the paper copy of the proposal to the CO until after the deadline for submission had passed. Since the CO did not have the paper copy before the deadline, she rejected the protester's proposal as late.

Exception to Late Proposal Rule

The court sustained the protest. Under the late proposal rule ( FAR 15.208 (b)), a proposal received after the time set for receipt of proposals generally will be considered late and ineligible for an award, but under the government control exception ( FAR 15.208 (b)(1)), a "late" proposal may considered if "it is received before award is made, the [CO] determines accepting the late proposal would not unduly delay the acquisition; and ... it was received at the [g]overnment installation designated for receipt of proposals and was under the [g]overnment's control prior to the time set for receipt of proposals." The protester met the first two requirements: it was undisputed the government received the proposal before it made an award, and the fact the CS was willing to send someone to pick up the "stragglers" indicated a brief delay was not a problem for the government. Also, the evidence established the paper version of the proposal was received at the government installation prior to the submission deadline: the courier arrived at the visitor's center before the deadline and stated he was there to deliver the proposal, the security guard gave the courier a note documenting he was present before the submission deadline, and shortly before the deadline, the CS spoke with the protester and acknowledged the courier was at the base.

Electronic Version Timely

On the issue of control, the government argued it must have physical possession for a proposal to be under its control. However, the court was not required to "... adhere woodenly to a physical possession test, especially in the circumstances of this case ...." According to the court, the "proper focus ... is whether the government has control over the proposal such that the offeror has no ability to modify the proposal and not merely whether the offeror retains physical possession of the proposal." Here, the courier retained physical possession and control over the paper proposal, but the protester had already submitted a complete copy of its proposal by e-mail, which was a required method of submission. Because the CO had a complete version of the proposal, any post-deadline changes to the paper proposal would be readily detectible. Although the paper and e-mail proposals were not identical, the differences arose because the protester made clerical adjustments to its e-mailed copy, not because the protester was making last-minute or post-deadline adjustments to the paper proposal. This was not a case where "the offeror [was] merely present at the facility before the deadline expires but still ha[d] the ability to manipulate the proposal." ( Electronic On-Ramp, Inc. v. U.S., FedCl, 56 CCF 79,780)




(The news featured above is a selection from the news covered in the Government Contracts Report Letter, which is published weekly and distributed to subscribers of the Government Contracts Reporter. )


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