Once again, an offeror’s proposal has been ruled late because of an unsuccessful encounter with technology. (See our two recent blogs on this subject in “Agency Spam Filter Knocks Contractor out of Procurement“ and “Agency Errors Leave Contractor Out in the Cold“)

In the latest case, the offeror’s employee uploaded the complete proposal to the designated web portal two days before the due date. At least, he thought he had uploaded it. The portal indicated to the employee that the volumes of the proposal were “In Progress,” and the employee took no further action to deliver the proposal at that time. (You are saying to yourself that “in progress” does not mean the same as delivered, and you are right.)  On the due date, the offeror sent an email message through the web portal to the agency Contracting Officer requesting confirmation that the proposal had been received. The Contracting Officer responded the same day that the agency had not received the proposal; however, the employee who had tried to upload the proposal did not receive this message.

The offeror sought advice from the web portal help desk and learned that, although the proposal was in the system, the employee should have clicked the “submit” link in order to complete proposal delivery. The offeror completed this step five days after the proposal due date, and as the proposal moved into agency’s system, the status of the proposal volumes changed from “In Progress” to “Submitted.”

When the agency rejected the proposal as late, the offeror protested. The U.S. Court of Federal Claims denied the protest, stating:

“It seems that no one on Plaintiff’s staff carefully or fully read the instructions found at [the web portal], because the steps necessary for delivery of a proposal were not taken.”
The Court continued:
“While the wording of [the] Solicitation perhaps could have been clearer to avoid confusion, it remains Plaintiff’s responsibility to understand the proposal submission requirements, including educating itself on the use of the electronic filing system specified in the Solicitation.”

Accordingly, said the Court, the agency acted reasonably to reject the proposal as late. (The case is Johnson Controls Government Systems, LLC v. United States, COFC No. 15-1440C (Feb. 19, 2016), available here.)

Most of us are familiar with online transactions and warnings such as “Your transaction is not complete until you click ‘Submit’.” And, we all mess up from time to time. But, just as when shopping online, the order is not placed and the proposal is not submitted until you click the “submit” button.


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