Arent Fox Secures Injunctive Relief from US Court of Federal Claims in USAID Case

Arent Fox successfully argued on behalf of Insight that USAID should have accepted the proposal pursuant to an exception to the lateness rule. USAID had previously rejected Insight’s proposal because it reached the contracting officer’s electronic mailbox after the filing deadline — despite the email having been sent more than one hour before the cutoff.

Insight was represented by Government Contractor Services partner Richard J. Webber, who led a team that included associate Patrick R. Quigley in the case, Insight Systems Corp. and Centerscope Technologies, Inc. v. United States.

“Given the US Government Accountability Office’s (GAO) contrary position on the law, we knew that we had to bring this bid protest action in the Court in order to obtain a favorable result,” said Mr. Webber. “Because the equities were in our favor, we felt we had a strong chance to prevail.”

Mr. Webber argued that while the applicable regulation provided that a late proposal would not be considered for award, the Federal Acquisition Regulation (FAR) provides for an exception to that rule where there is “acceptable evidence to establish (the proposal) was received at the government installation designated for receipt of offers and was under the government’s control prior to the time set for receipt of offers.”

But in several previous cases GAO held that this exception was not intended to apply to electronic transmissions because there is another exception stating that email proposals will not be treated as late if they are received “at the initial point of entry to the Government infrastructure not later than 5:00 p.m.” on the prior work day. According to GAO, applying the more general exception to electronically submitted proposals would make the specific exception a “nullity” and violate principles of regulatory construction. The Court disagreed and ruled that the specific exception retained its viability as a safe harbor provision for electronic submissions.

To demonstrate that the failure of Insight’s proposal to reach the contracting officer’s mailbox was due to a malfunction in the agency’s computer system, Arent Fox successfully moved to supplement the administrative record with computer logs and an Information Technology expert’s declaration. Relying on that information, the Court found Insight’s proposal had been received by USAID’s computer servers and was under the “government’s control” — placing it within the meaning of the more general exception.

With more than 30 years of litigation experience, Mr. Webber’s government contracts practice focuses on claims, bid protests, construction, and terminations.

Arent Fox is a recognized leader in providing innovative, non-traditional legal counsel for companies facing tough government contracting problems. The Government Contractor Services practice represents clients in contracts before virtually every federal defense and non-defense agency, the US Congress, and state and local governments.