Guest Post: Bidding in the Electronic Age: Three Cautionary Tales (and Best Practices)

by Steven Koprince, Koprince Law LLC

Nobody calls a government contracts attorney to say “everything’s great, please send me my invoice!”  My phone rings when something goes wrong.  And increasingly, I’m hearing about issues involving electronic proposal submissions.

If the public dockets are any indication, the GAO is hearing the same thing: many recent GAO protests involve electronic proposal submissions.  Here are three recent cases I think contractors ought to know about.

  1. The “Oops—I Didn’t Attach the File” Case

We’ve all done it.  You send an email, saying something like “please see the attached file.”  But you forget to attach the file.  Oops.  It’s usually not a big deal; if you don’t notice the mistake yourself, the intended recipient inevitably reminds you to send the file.  But what if the file in question is part of a government proposal?

In JV Derichebourg-BMAR & Associates, LLC, B-408777 (Nov. 30, 2013), a Navy solicitation required that proposals be submitted by email.  On the day of the deadline, JV Derichebourg-BMAR & Associates, LLC attempted to submit its proposal in two separate emails: one containing its technical proposal, and the second its price proposal and other documents.  But JVDB’s second email didn’t include the attachments that JVDB had attempted to send.

Two days after the deadline, JVDB apparently noticed its error, and resent the second email—this time with the attachments included.  But the Navy refused to evaluate the attachments, stating that they were submitted late.  The Navy excluded JVDB’s proposal as incomplete.

JVDB took its case to the GAO, arguing, in part, that the Navy should have alerted JVDB that the attachments were missing.  The GAO disagreed, writing, “JVDB has cited no law, regulation or decision by this office—nor are we aware of any—in support of the proposition that agency personnel have a duty to review emailed offers for completeness prior to the proposal closing date and to notify offerors of any missing sections.”  The GAO denied JVDB’s protest.

Lesson Learned: When it comes to electronically submitted proposals, A simple (yet common) mistake—forgetting to attach a document—can be fatal.  JVDB’s story likely would have had a happy ending if JVDB had adopted an internal corporate practice: when a proposal is submitted by email, a second employee immediately checks the sent message to ensure that all required documents are included.

  1. The “Agency Spam Filter” Case

In Blue Glacier Management Group, B-412897 (June 30, 2016), a Treasury Department RFQ required that proposals be submitted by email no later than 2:00 Eastern.  Blue Glacier submitted its proposal about three hours before the deadline.  But unbeknownst to Blue Glacier or the contracting officer, the proposal was captured in the agency’s spam filter.  The agency received five other proposals without incident.

Two months after submitting its proposal, Blue Glacier sent a follow-up email to the agency; Blue Glacier later followed up with a telephone call.  But it was too late: the agency’s email network had automatically deleted the email containing Blue Glacier’s proposal after 30 days.  Blue Glacier then resubmitted its proposal—more than three months after the due date.  The agency declined to consider the proposal.

Blue Glacier sought relief at the GAO, arguing that the spam filter issue was entirely Treasury’s fault.  GAO wasn’t convinced.  It pointed out that the proposal was deleted “because Blue Glacier did not seek prompt confirmation of the receipt of its quotation.”  And because the original email was deleted, “the agency has no way to confirm the contents” of the proposal Blue Glacier originally submitted.  Under the circumstances, there was the “possibility that [Blue Glacier] could have altered its proposal” after the due date, and obtained an unfair competitive advantage.  The GAO denied Blue Glacier’s protest.

Lesson Learned: When submitting an electronic proposal, don’t assume that it was received.  If Blue Glacier had attempted to verify submission within 30 days, the agency probably would have evaluated Blue Glacier’s proposal.

  1. The “Agency File Size Limit” Case

What if the agency has an internal file size limit?  And what if the solicitation doesn’t say anything about that internal limit?  Yep, you guessed it: a proposal can still be excluded for exceeding that limit.

That’s what happened in Washingtonian Coach Corporation, B-413809 (Dec. 28, 2016).  In that case, a VA solicitation established a deadline of 2:00 p.m. on September 16, 2016.  Offerors were required to email their proposals to two VA officials.

At 1:19 p.m. on September 16—a mere 41 minutes before the deadline—Washingtonian Coach Corporation emailed its proposal to the VA.  WCC’s proposal apparently exceeded 10 MB in size; the VA officials in question didn’t receive the emails.

At 1:55 p.m., WCC attempted to call the VA to confirm receipt of the proposal.  WCC received a voicemail, WCC followed up with additional calls and emails after the 2:00 deadline.

The VA’s IT department eventually determined that WCC’s emails had not been received “at the Local Exchange Level” because they “exceeded the size limit which is allowed by VA policy,” that is, because they exceeded 10 MB.  The VA declined to consider WCC’s proposal.

WCC, too, took its case to the GAO.  WCC argued that it submitted its proposal to the correct email addresses before the deadline.  WCC also pointed out that the solicitation didn’t mention a 10 MB size limit.

The GAO wrote that “we view it as an offeror’s responsibility, when transmitting its proposal electronically, to ensure the proposal’s timely delivery by transmitting the proposal sufficiently in advance of the time set for receipt of proposals . . ..”   Additionally, it is up to the offeror to ensure that its proposal “is received by—not just submitted to—the appropriate agency email address prior to the time set for closing.”  The GAO denied WCC’s protest.

Lesson Learned: Don’t submit electronic proposals at the last minute (or the last 41 minutes, for that matter).  Had WCC submitted its proposal a day or two earlier, it likely would have been able to reach the VA officials by phone or email before the proposal deadline—and would have learned that its proposal hadn’t been received.

Some Final Thoughts

Email is a wonderful tool, and it’s great that agencies are increasingly accepting electronic proposals.  But, as these cases show, the convenience of electronic submissions doesn’t come without risks.  Understanding those risks, and implementing some internal best practices to mitigate them, could save a lot of heartache sometime down the road.

Steven Koprince is the founder and Managing Partner of Koprince Law LLC, a boutique law firm dedicated exclusively to providing legal solutions to federal government contractors. Steven is the author of The Small Business Guide to Government Contracts (AMACOM Books, 2012), a compliance guide designed to help small companies navigate the federal marketplace, and blogs regularly on small government contracting issues at SmallGovCon (  Steven‘s work has been published by leading industry and legal publications, including Contract Management Magazine, The Procurement Lawyer, The Federal Lawyer, Law360, and many others.  Steven is a graduate of Duke University and the Marshall-Wythe School of Law at the College of William & Mary in Virginia.