Lost Proposals

Many contractors understand that when a proposal is submitted late, then the rule is “Late is late” and they may be eliminated from the competition for a resulting contract. Generally, the contractor is at fault when the proposal is submitted late because they control the preparation and the submission of the proposal. But what happens when a contractor timely submits their proposal, only to discover later that the Government lost their proposal??

This question was the subject of a recent decision by the Government Accountability Office in the Matter of Project Resources, Inc., File B-297968, dated March 31, 2006. In summary, if the Government loses your proposal, you lose any possibility of an award unless you can prove the agency has a “systemic failure”

somewhere in their process for handling proposals received.

The Request for Proposal (“RFP”) from the United States Army Corps of Engineers (the “Corps” or the “agency”) set a date and time for receipt of proposals as no later than 2PM on October 12, 2005. Protester Project Resources, Inc. (“PRI”) had their proposal delivered by FedEx at 9:30AM on October 12, 2005. Somehow, the agency lost the PRI proposal before an evaluation of the PRI proposal could be conducted. PRI, however, did not learn of this loss until after the Corps made five awards on January 31, 2006. PRI decided to inform the agency that it had submitted a proposal. The agency searched for the proposal but was unable to locate it.

PRI filed a protest and sought relief in the form of a proper evaluation of its proposal. The GAO denied the protest.

GAO stated that “agencies have a fundamental obligation to have procedures in place to receive submissions for competitors under a solicitation, to reasonably safeguard submissions received, and to fairly consider all submissions received. As a practical matter, however, even with appropriate procedures in place, an agency may lose or misplace a submission and such occasional loss-even if through agency negligence-generally does not entitle an...

1 | 2