Rule: Although the government must accept a late bid if it causes a delay, bidder responsibility for the delay is also a factor.

It’s every vendor’s worse nightmare: spending time preparing a bid only to miss the submission deadline. It can happen on any competition, including competitions worth $40 billion, as seen from a recent decision by the Government Accountability Office (GAO). The decision contains an excellent explanation of how the late bid rules work

US Aerospace Inc. (USAI) was competing for a U.S. Air Force contract for refueling tankers. The RFP said that proposals had to be received at “1755 Eleventh Street, Building 570, Wright-Patterson AFB [Air Force Base], OH, by 2:00 p.m. on July 9, 2010.” The USAI messenger carrying the bid claimed that he delivered it prior to the 2:00 p.m. deadline. But the facts are more complicated.

According to the USAI messenger had arrived at one of the Wright-Patterson AFB entrance gates at 1:15 p.m. It was not, however, the entrance gate identified on the internet as being the non-military visitor’s entrance gate. He said he was denied entry and was told to ask someone from the office to which he was delivering the documents to call the gate guards to authorize his admission. He also said that he was permitted to enter the base “just after” 1:40 p.m. and that, following the guard’s directions, he “noticed the address provided did not exist, as the road dead ended into a building.” At 1:53 p.m., he received a call on his cell phone from the contracting officer's representative (COR), who said something to the effect of “[t]hey just built that building at the end of the road, unless you knew to go around the new building you never would have found #570 because it sits behind the new building and is not visible.” The COR led the messenger to the correct building, and, once there, gave him a receipt stating the bid was received at 2:05 p.m., five minutes late. Before signing the receipt, the COR made two phone calls to the contracting office; cell phone records confirm two calls were made at that location at 2:05 p.m. According to GAO, the messenger never “indicated any disagreement with the 2:05 p.m. delivery time reflected on the receipt.”

GAO concluded that the bid was late and found no exception under the solicitation’s rules for accepting the late bid.

First, the bid was late because there was no proof showing otherwise: “USAI offers no evidence to support its assertion other than its messenger's representations regarding the timing of events prior to proposal submission, and the messenger's conclusion that ‘the proposal was submitted by 2 p.m.’” USAI argued that the COR’s watch was not a valid indicator of the real time because the agency had not used a metered timestamp. But the GAO rule states that “the declaration of the agency official responsible for receiving bids or proposals is determinative with regard to the time a bid or proposal is received, absent a showing that the agency official's declaration was unreasonable,” and GAO found nothing unreasonable about the COR’s conclusion that the bid was received at 2:05 p.m.

Since the bid was late, the bidder argued that the late delivery was excused because the government gave the messenger the wrong directions. Although GAO acknowledged that there were exceptions to the late bid rules, the facts of this case did not fit within the exceptions.

The late proposal rules include limited exceptions under which late proposals may be considered. Specifically, this Office has held that a late hand-carried offer may be considered for award if the government's misdirection or improper action was the paramount cause of the late delivery and consideration of the offer would not compromise the integrity of the competitive process[.] Nonetheless, even in cases where the late receipt may have been caused, in part, by erroneous government action, a late proposal should not be considered if the offeror significantly contributed to the late receipt by not doing all it could or should have done to fulfill its responsibility.

Here, the bidder’s messenger contributed significantly to the late delivery: “[I]t was USAI's decision to attempt entry to Wright-Patterson AFB, a secure military facility, at gate 19B—a gate designated for admission of personnel with military credentials—rather than at gate 1B—the entrance at which visitors without military credentials were directed to arrive. In addition to its decision to attempt entry at a gate not designated for use by non-military visitors, USAI's messenger arrived at the entrance gate with less than an hour remaining before proposals were due, did not obtain advance approval for entry, and failed to previously ascertain the location of, and directions to, the building designated for proposal submission.”

Finally, GAO did not agree that the late bid was “under Air Force control” prior to the 2:00 p.m. closing time. FAR 52.215‑1(c)(3) states at (ii)(A) that “Any proposal, modification, or revision received at the Government office designated in the solicitation after the exact time specified for receipt of offers is ‘late’ and will not be considered unless it is received before award is made, the Contracting Officer determines that accepting the late offer would not unduly delay the acquisition; and ... (2) There is acceptable evidence to establish that it was received at the Government installation designated for receipt of offers and was under the Government's control prior to the time set for receipt of offers….”

But being “under the Government's control” prior to the time set for receipt of proposals means at least that “an offeror must, at a minimum, have relinquished physical custody of the proposal.” But in this case, the bid was not released from the messenger until 2:05.

GAO concluded that the agency had properly refused to accept the late bid.