We persuaded the agency to rescind its rejection of our client’s proposal as untimely so that our client’s proposal could be considered.
The U.S. Army Corps of Engineers required proposals for a design-build construction project to be submitted electronically through the Department of Defense Secure Access File Exchange (DoD SAFE). Our client requested a DoD SAFE link days before proposals were due, confirmed that its files were below the maximum file size for DoD SAFE, and tested the upload speed of its system. Although test runs indicated that our client’s proposal files could be uploaded in seconds, our client’s first attempt to upload its files on the day proposals were due took nearly 30 minutes, and no automated message confirming receipt was sent by the agency’s system after the progress bar reached 100 percent. Our client tried again before the closing time, but the upload was not complete until after closing.
The agency notified our client that its proposal was late and would not be considered under Federal Acquisition Regulation (FAR) 15.208, which generally prohibits consideration of late proposals. We prepared a letter for our client, asserting two exceptions to FAR 15.208. The contracting officer asked our client for further details concerning its first submission. We helped our client prepare a declaration detailing the available evidence but pointed out that the best evidence of what happened was already in the agency’s possession, since its servers should have logged visits to the site with all transaction details and any error messages. We noted that such evidence was regularly cited in bid protest cases and presumably available to the agency. In response, the agency rescinded its determination that our client’s proposal submission was late and included our client’s proposal in its evaluation.
