Recent GAO protest decision highlights the case law-derived exception to the “late is late” rule for responsibility-related proposal documents.
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.
Keep reading article at: https://www.jdsupra.com/legalnews/gao-highlights-responsibility-exception-58695/
In the past several months, a private investigative firm has been shopping around to Washington reporters a 100-plus-page dossier raising the specter of corruption on the part of senior Defense Department and private company officials in the competition for the 
Pretty bad and possibly getting worse.
A summary of the decision and our takeaways are below.
Generally, the GAO’s bid protest jurisdiction does not extend to the review of awards made under an agency’s “other transaction” authority; however, the GAO will review a timely protest that an agency is improperly using an OTA rather than a procurement contract. See 4 C.F.R. § 21.5(m).
