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Protester Properly Excluded for Late Proposal


A protester did not have a substantial chance of receiving an award for a food services contract, according to the Court of Appeals for the Federal Circuit, because the government's unauthorized acceptance of e-mails did not interfere with the protester's ability to receive the contract, and the protester was properly excluded from the competition for submitting a late proposal. Although e-mail was not an authorized method of transmission under the solicitation terms, the government accepted substantive proposal revisions via e-mail from all of the offerors. The government also issued several solicitation amendments and, following the last amendment, the protester failed to submit a timely revised proposal. The Court of Federal Claims (52 CCF 79,021) found the protester had standing, and issued a permanent injunction vacating the government's award, because prior to the protester's disqualification for its late response, all the proposals had been invalidated for not following the specified transmission method. On appeal, the protester, arguing the CFC decision should be upheld, attempted to equate the two irregularities in the bid process, contending the issues of timeliness and transmission were of equal importance.

 No Prejudicial Error

However, there was no connection between the government's method of transmission error and the contractor's failure to secure the contract. Instead, the government disqualified the protester from further consideration because the protester's response to the amendment was late. The protester was the only offeror to submit a late response and its untimely submission constituted an independently sufficient ground for rejection. There are inherent competitive advantages to submitting a proposal after all parties are required to do so. To avoid potential for abuse, submission deadlines are strictly enforced. Unlike the transmission method error, which was not relevant to the protester's removal from the competition, the late submission prevented the protester from having a substantial chance at receiving the award. Accordingly, the protester failed to establish standing to challenge the award and the CFC had no jurisdiction to issue the injunction. (Labatt Food Service, Inc. v. U.S., CA-FC, 53 CCF 79,160)




    (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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