In a recent blog, we discussed the “late is late” rule in government contracting which has been the cause of many protests and much consternation among government contractors. However, the Government Accountability Office (GAO) and the Court of Federal Claims (COFC) have consistently held that it is proper for an agency to reject a late offer, even if the offer is only slightly late. Recently, COFC applied this rule to a General Services Administration (GSA) Schedule purchase—specifically in Criterion Systems, Inc. v. United States,[1] in which the court held that an offer that was a mere 90 seconds late, was too late to be considered for award. No matter the type of procurement or the agency involved, government contractors should be careful to submit all their materials ahead of the scheduled deadline.
FAR Subpart 8.4 governs purchases from the Federal Supply Schedule; in general, such purchases are exempt from FAR Parts 13 (Simplified Acquisition Procedures), 14 (Sealed Bidding), 15 (Contracting by Negotiation), and 19 (Small Business Programs), though as with most issues in government contracting, there are exceptions to that general exemption. Significantly, this means that there is no “late is late” rule that automatically applies to Schedule purchases, since there is no such rule in FAR 8.4. However, the fact that FAR 8.4 does not include such a rule, does not mean it cannot apply to a specific Schedule purchase.
In Criterion, the Request for Quote (RFQ) was intended to establish a single-award task order pursuant to the Blanket Purchase Agreement (BPA) that was already in place. The RFQ indicated at multiple points, in bold capital lettering, that the agency would not accept late quotes. The final amendment to the RFQ also noted that the pricing updates it required must be submitted by the deadline noted in the amendment, or else the quotes in their entirety would not be considered.
Three offerors, including Criterion, submitted quotes in response to the final amendment on November 21, 2018. However, Criterion submitted its quote at 17:01:30, 90 seconds after the deadline had passed. The procuring agency asked Criterion to justify why it had submitted its quote late, but Criterion was unable to give an answer that satisfied the agency. Thus, the agency rejected Criterion’s quote as untimely.
Criterion, understandably upset by the agency’s decision, protested its exclusion from competition at GAO in Criterion Systems, Inc., B-417240 (Apr. 16, 2019). GAO agreed with the agency that the RFQ terms specifically required offerors to submit their quotes by the time specified in the RFQ and any amendments. Therefore, Criterion’s quote was properly rejected, even though it was only a little late. COFC agreed with GAO and the agency, holding that the agency properly rejected Criterion’s quote because the RFQ explicitly provided for this rejection.
Criterion also argued at both GAO and COFC that the agency should have evaluated Criterion’s un-mended quote. However, GAO and COFC both disagreed with this argument, since the amendment delayed performance of the resulting task order by an entire year, which required material changes to all offerors’ quotes. So, Criterion was out of luck.
The message to contractors is clear here: neither GAO nor COFC will assume an agency is flexible with respect to timely submission of quotes, even under FAR Part 8 procurements. Contractors should be careful to submit all their materials on time, no matter the type of procurement.
If you have questions concerning the timely submission of procurement documents, please contact a member of PilieroMazza’s Government Contracts Law Group.
Kathryn Flood is Counsel in the Firm’s Government Contracts Law and Small Business Programs & Advisory Services practice groups.
Anna Wright is an Associate in the Firm’s Government Contracts Law Practice Group.