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In its recent decision in Criterion Systems, Inc. v. U.S., , the U.S. Court of Federal Claims (COFC) denied protester’s pre-award protest challenging the Agency’s rejection of its late submission of a revised quote in response to a solicitation amendment and request for revised quotations. In this case, the solicitation provided that ““[f]ailure to follow procedures or provide any of the documents or information may be considered a material omission and may adversely affect a Vendor’s evaluation or result in elimination of the Vendor from the competition.” It also provided that “LATE QUOTES WILL NOT BE ACCEPTED.” Emphasis and color font in the original. Criterion timely submitted its initial proposal and was in the competition. The Agency issued subsequent amendments to the solicitation and sought submission of the competitors’ revised quotes through a government portal, FedConnect, “no later than 5:00pm ET on November 21, 2018.”  Each amendment and the request for revised quotes stated that “LATE QUOTES WILL NOT BE ACCEPTED.” Emphasis and color font in the original.

Criterion “created” its revised quote on the designated electronic portal at 2:36:54 PM on November 21, 2018, but it did not “submit” it until 5:01:30 PM ET, 90 seconds after the deadline for quote submission. When asked for an explanation by the Agency, Criterion indicated it may have had “latency” issues and that this was its first time submitting documents using the portal.  Criterion did not provide any evidence to justify or further explain its late submission. The Agency rejected Criterion’s quote as untimely. In contrast, when another bidder submitted its revised quote without required pricing pages, the Agency engaged in communications with that bidder.

Criterion brought its protest alleging that the Agency’s actions in rejecting its quote were arbitrary and capricious and the Agency engaged in disparate treatment of the bids submitted by Criterion and the other offeror.

In rejecting Criterion’s protest of the rejection of its revised quote, the Court held that protester failed to establish that there was a “significant error” in the procurement process. Here the terms of the solicitation made clear that timing was critical for acceptance of the initial and revised quotations, “Ninety seconds late may appear to be a minimal infraction, but deadlines are set for a reason, and an agency’s strict adherence to a deadline places all bidders on an equal footing and avoids the sorts of issues Criterion is seeking to raise here.  Further, Criterion’s failure to submit a timely bid was entirely within its own control. [See Conscoop-Consorzia Fra Coop. Di Prod. e Lavoro v. United States, 62 Fed. Cl. 219, 237 (2004).] The Agency’s refusal to deviate from the express RFQ terms is not arbitrary, capricious, or contrary to law.”

The Court also rejected Criterion’s claim of disparate treatment holding that such protest grounds can only be made when there are discussions and an award.  Since the Agency had not made an award as of the time of the protest, the Court held that this protest ground was premature. The Court stated that “A claim is not ripe for judicial review when it is contingent upon future events that may or may not occur.”

Criterion makes clear that all those who compete in procurements must comply with the express terms of the solicitation. This is an essential truth in government procurement. A bidder’s or offeror’s failure to comply with such terms can result in its loss of the opportunity to be considered for award.

These days many procurements are conducted with the requirement to submit bids or proposals through portals or by electronic means. Submissions may also require access to government facilities, which can raise problems. As a contractor seeking to compete and win a procurement, it is important that you understand how to deliver your submissions. Become familiar ahead of time with the procedure you will need to use. And, when you file, always check to ensure that your submission has gone through and been accepted. Sometimes it takes a bit more time to get submissions through a portal, so be sure to leave extra time to do so.

If you do encounter a problem – you may still not be out of the procurement if you take appropriate steps. The lesson from Criterion: timing is everything.

If you have questions about this case, or a government contract matter, contact Susan Warshaw Ebner or your Stinson counsel.  Problems in a procurement may have solutions, ask your counsel if you have questions.