Proposal Delayed by “Mail Storm” Was Timely

Rejection of a protester’s revised e-mailed proposal as late was improper, according to the Court of Federal Claims, because the proposal reached the designated government office by the time specified in the solicitation. An amendment for the second phase of a solicitation for barracks design and construction requested proposal revisions by 12:00 p.m. on the due date. The protester e-mailed its revision to the contracting officer’s e-mail address at 11:00 a.m. on the due date and the first of four government servers received the e-mail at 11:29 a.m., but an unexplained “mail storm” at the government’s e-mail servers delayed actual delivery to the CO’s e-mail inbox until 12:04 p.m. The protester challenged the government’s determination its proposal was late and ineligible for award.

Designated Government Office

Pursuant to FAR 52.215-1 (c)(3)(i)-(ii), “[o]fferors are responsible for submitting proposals, and any modifications or revisions, so as to reach the [g]overnment office designated in the solicitation by the time specified in the solicitation. … Any proposal, modification, or revision received at the [g]overnment office designated in the solicitation after the exact time specified for receipt of offers is ‘late’ and will not be considered ….” Here, the “[g]overnment office designated in the solicitation,” was the CO’s e-mail address, and the proposal both reached and was received by the government’s e-mail servers before time specified for receipt. Moreover, even if the protester’s proposal were late, the lateness was excused under FAR 52.215-1 (c)(3)(ii)(A)(2) because there was “acceptable evidence” the proposal “was received at the [g]overnment installation designated for receipt of offers and was under the [g]overnment’s control prior to the time set for receipt of offers.” In addition, the protester would have been entitled to a one-day extension to submit its proposal pursuant to FAR 52.215-1 (c)(3)(iv), which provides “[i]f an … unanticipated event interrupts normal [g]overnment processes so that proposals cannot be received at the office designated for receipt of proposals by the exact time specified in the solicitation,” the time specified for receipt of proposals is deemed to be extended to the same time on the first work day on which normal government processes resume. The mail storm was an unanticipated interruption, and normal government processes resumed the following day. (Watterson Construction Co. v. U.S., FedCl, 55 CCF ¶79,554)