Any contractor is frustrated when they fail to win a solicitation award. Getting edged out on price by a few percentage points, receiving a low technical rating due to a misread proposal, or dealing with confusing evaluation criteria; all legitimate complaints. But imagine if your protest was not even considered, despite clear proof you sent it on time, as instructed. That’s exactly what happened to Ghazan Neft Gas, for its proposal on a fixed-priced supply and delivery contract of fuel to the US Embassy in Afghanistan.
The solicitation instructed proposals to be sent via email, and Ghazan did just that on March 13th, well before the April 3rd deadline. On April 8th, Ghazan inquired as to the status of its application, only to learn the Agency had not received the proposal. When Ghazan discovered the contract had been rewarded to another, it filed a protest with the GAO.
Ghazan provided screenshots and declarations showing the proposal was sent to the correct email address on March 13th. The original email was also forwarded from Ghazan’s sent folder. The Agency simply denied receiving the document and that a review of its inbox and junk folders did not find the email.
The GAO sided with the Agency, stating it was Ghazan’s responsibility to ensure the Agency received the protest and also its burden to prove the delivery occurred. Given Ghazan could show they clearly did send the proposal electronically to the correct place, but still failed to meet the burden, contractors should expect that only written confirmation by the government agency would meet the test.
About the Author:
Tyler Freiberger is an associate attorney at Centre Law & Consulting primarily focusing on employment law and litigation. He has successfully litigated employment issues before the EEOC, MSPB, local counties human rights commissions, the United States D.C. District Court, Maryland District Court, and the Eastern District of Virginia.