Government Control Exception Applies to Electronic Submissions
(Editor’s Note. The following shows that late submittal rules need to accommodate the electronic age.)
USAID issued a RFQ for health support services where it told offerors the quote deadline was 5:00 PM on Nov. 27, 2012. Two offerors sent an email with the proposals attached to USAID personnel where both were received by the agency server before the deadline (3:41 PM and 4:39 PM, respectively) but the server was unable to transmit the email to recipients until after 5:00 PM. USAID told both offerors their quotations would not be considered because they were untimely and both filed complaints on a consolidated basis. The offerors asserted the government control exception at FAR 52.212- 1(f)(2)(i)(B) applied to make their quotes eligible because their emails were received at the government installation designed for receipt of the quotations and were under government control prior to the deadline. The government asserted the electronic commerce exception at FAR 52.212.-1(f)(2)(i)(A) applied which creates a safe harbor for electronic submissions but it applies only to proposals submitted at least a day before they are due. The Court agreed with the offerors and rejected the government position stating it was correctly applying the government control exception to the technology USAID was using. The Court ruled no contract can be awarded unless the offerors’ quotes were accepted (Insight Systems Corp. V US, Fed. Cl. No. 12863(C).
