Takeaways

The FAR “late is late” rule requires rejection of untimely filed proposal documents, except in limited circumstances.
Under GAO case law, proposal documents relating to a contractor’s responsibility may be submitted any time prior to award, regardless of contrary statements in the solicitation.
A recent GAO protest decision confirms that agencies are required to evaluate responsibility documents received after the proposal deadline and before award or earlier down-select evaluation.

Under the Federal Acquisition Regulation (FAR) “late is late” rule, a government contractor’s proposal must be received by the government by the time stated in the solicitation. If a proposal document is even one second late, it cannot be accepted by the government. The FAR provides very limited exceptions to this rule. Specifically, it states that where a proposal is received before the award and the contracting officer determines that accepting it will not delay the procurement, the government may accept the untimely proposal if: (1) it was received electronically at the initial point of entry to the government infrastructure at least one working day before the proposal submission deadline, or (2) if it was under government control before the proposal submission deadline, or (3) if only one proposal was received. These narrow FAR-based exceptions apply infrequently.

Government Accountability Office (GAO) case law, however, provides another exception to the “late is late” rule, for responsibility-related proposal documents. GAO has long held that solicitation requirements regarding present responsibility of the contractor, governed by FAR Subpart 9.1, may be satisfied at any time before award and that a solicitation cannot convert a matter of responsibility into one of proposal acceptability. This means that if a contractor submits responsibility-related documents after the deadline for receipt of proposals, the government must evaluate those documents if they are relevant to the government’s determination of the contractor’s responsibility. The government is not obligated to give offerors an opportunity to provide missing documents that relate to responsibility, but it may not refuse to consider information that it has in its possession, even if it was received after the proposal submission deadline.

A recent GAO decision demonstrates the application of this exception. In Chags Heath Info. Tech., LLC, B-413104.30 et al., Apr. 11, 2019, the government rejected the protester’s proposal as unacceptable for allegedly failing to timely provide a password to an encrypted financial document that related solely to the offeror’s responsibility. The solicitation stated that such passwords were to be submitted by email prior to the deadline for proposal submission. The government asserted that it did not receive the email with the password prior to the time for receipt of proposals, while the protester asserted that the email with the password was timely submitted. The parties did, however, agree that the underlying encrypted financial document was timely submitted in the protester’s proposal. The parties also agreed that the government requested clarification regarding the missing password, and the protester resent the email with the password prior to the government’s evaluation of the protester’s proposal. Thus, it was undisputed that both the encrypted financial document and the password were in the government’s possession prior to the time of government’s evaluation of the protester’s proposal. The government, nevertheless, found the protester’s proposal unacceptable because the password was not received prior to the proposal due date.

GAO held that the agency’s rejection of the protester’s proposal was unreasonable because the encrypted financial document related solely to the protester’s responsibility, not technical acceptability, and because the agency had both the financial document and the password in its possession prior to evaluating the protester’s proposal. GAO explained that “responsibility and technical acceptability are distinct matters” and that “[r]esponsibility may be satisfied at any time prior to award, as opposed to technical acceptability, which must be satisfied based on a common proposal deadline.”

The key takeaway from this case is that, while it is critical to confirm that all required proposal documents are submitted prior to the solicitation’s deadline, contractors should be aware that responsibility-related documents cannot be rejected by the government as untimely so long as they are in the government’s possession prior to award or any earlier down-select evaluation.