Why Won’t the FAR Council Change the Late is Late Rule?

By David Timm of Burr & Forman LLP

The Court of Federal Claims (COFC) made it even harder to challenge the timely submission of bids, further narrowing the exceptions to the Late is Late rule.¹ The needlessly complex rule is a consistent source of litigation. Why did the Revolutionary FAR Overhaul (RFO) leave in untouched?

I’ve analyzed the landscape of the Late is Late rule for years, focusing on an enduring split of interpretation between the Government Accountability Office (GAO) and COFC. These two forums disagree about whether the Government Control Exception applies to bids submitted via email. For COFC, the Government Control Exception applies when a bid is timely emailed to an agency before the deadline for receipt of offers, but the email containing the bid does not reach the designated inbox due to problems within the agency’s control. For example, the exception applies when an email containing a bid is quarantined by a government server that wrongly designates the email as spam.²

The best practices to ensure timely delivery of email bids are simple and effective:

• Send emails containing bids before 5 p.m. at least one working day ahead of the deadline
• Turn on delivery and read receipts
• Upon submission, immediately call the contracting officer to confirm receipt
• If the contracting officer does not confirm receipt, prepare another delivery method, if allowed by the solicitation
• If a dispute about timeliness arises, file your protest at COFC rather than GAO

In the Spring, I explained in an article that the Revolutionary FAR Overhaul (RFO) not only failed to resolve the unnecessary complexity presented by the Late is Late rule (and related split of interpretation between GAO and COFC), but it also created new rules for contractors to track.³ This is true despite the RFO’s stated goal of removing non-statutory rules and reducing regulatory burdens for contractors.

The RFO changed the Late is Late rule to provide contracting officers with more discretion regarding acceptance of potentially late bids in the Commercial procurement context. But the relevant RFO deviation language, which has yet to go through Notice and Comment Rulemaking, shockingly left the heavily litigated issue of the Government Control Exception untouched for all other types of procurements.⁴

As I noted in an article for NASBP Surety Bond Quarterly, even the Federal Circuit has been “baffled” about why the FAR council has declined to resolve the two-decade long split. The RFO presented a perfect opportunity to do so, but there is no indication that it will accomplish that result.

COFC’s decision in Rick Aviation cements how frustratingly complex this issue is for contractors. In that case, COFC honed in on nuanced language in the current (the RFO deviation was not included in the solicitation) Commercial Products and Services FAR provision, FAR 52.212-1, and asked whether there were pre-requisites for contractors to meet before the Government Control applies. Relevant here, the Court found that the offer must be (1) “received at the Government office designated in the solicitation” (2) “before award.” The full Late is Late rule reads:

Offerors are responsible for submitting offers, and any modifications, revisions, or withdrawals, so as to reach the Government office designated in the solicitation by the time specified in the solicitation. If no time is specified in the solicitation, the time for receipt is 4:30 p.m., local time, for the designated Government office on the date that offers or revisions are due.

Most cases jump straight to the language of the Government Control Exception, which allows receipt of an otherwise untimely bid if it was received at “the Government installation designated for receipt of offerors…” In Rick Aviation, COFC reasoned that the FAR uses different terms—installation and office—purposefully. In other words, before a contractor can avail itself of the Government Control Exception concerning receipt of offers at the “Government installation designated for receipt of offers,” the contractor must first show that its offer was “received at the Government office designated in the solicitation. . . before award.”

In Rick Aviation, the contractor’s prospects for winning on the Government Control exception looked decent. It submitted its bid early and the government’s installation (in this case, a government spam server) had taken control of the email bid. The contractor had also received an email from the Mail Delivery System confirming delivery.

Satisfied with this automated confirmation, the contractor did not follow up with the contracting officer to confirm receipt. Months passed and eventually DLA awarded to the other bidder. In the meantime, the protester’s email was quarantined in a government server and was never relayed to the designated inbox, i.e., the “Government office designated in the solicitation.”

The Court found that because the email was never released from quarantine (and therefore never arrived at the contracting officer’s inbox), it couldn’t consider whether the Government Control exception applied. And because the contract was awarded while the protester’s submission remained quarantined, the Court further found that the protester could not argue that the Government Control exception applied.

The Court’s interpretation appears to be a matter of first impression. The opinion acknowledged that “[w]hether a late offer was received by a federal agency before award does not appear to be a highly litigated issue. . . most cases address the application of, or distinction between, the Government Control, Electronic Commerce, and other exceptions to the late is late rule.” In other cases where the email bid never reached the final destination, the Court noted that these “agencies either conceded or were ordered to accept the contractor’s late proposals, thereby receiving those offers before award.”

Most importantly, if the contractor followed best practices, they would have likely never had to file a bid protest. Here’s how it would have likely played out: The contractor submitted a day early before 5 p.m., consistent with my recommendation. But the contractor should have called the contracting officer to confirm receipt rather than relying on an automated delivery notification. The contracting officer would have likely answered and noted that they had not received the email submission. In that case, the contractor could have re-sent the email until it was successfully transmitted—with plenty of time to work out any technical issues. Remember: in these cases, it is in the government’s best interests to accept competitive bids, so the government is probably willing to work with contractors to prevent Late is Late issues before they arise.

Learn More 

Read David Timm’s article on this topic in the spring 2026 issue of NASBP Surety Bond Quarterly, “The Hydra of the “Late is Late” Rule.”

David Timm is a Partner in the Washington, D.C. office of Burr & Forman (www.burr.com) and a member of the firm’s Construction & Project Development practice group. He represents contractors in complex disputes, claims, and bid protests involving federal, state, and local government contracts. He serves as the Chair of the Bid Protest Committee for the Federal Bar Association and the Co-Chair of the firm’s AI Committee. Timm is a participant on the NASBP Attorney Advisory Council. He can be reached at dtimm@burr.com or 771. 232.1696.

End Notes

1 Rick Aviation v. United States, No. 25-1604 (June 17, 2026).
2 See e.g., Insight Systems Corp., v. United States, 110 Fed. Cl. 564 (2013); eSimplicity, Inc. v. United States, 162 Fed. Cl. 372 (2022).
3 David P. J. Timm, The Hydra of the “Late is Late” Rule, Surety Bond Quarterly (Mar. 17, 2026).
4 At the time of publication, Parts 1, 2, 3, 4, 5, 6, 7, 10, 18, 24, 26, 29, 33, 37, 39, 40, 41, parts of 52, and 53 had been issued as proposed rules in the Federal Register.