When It Absolutely, Positively Has To Be There On Time

The Alaska Supreme Court held that a law firm’s late bid to represent the State was properly accepted

 A state agency issued a request for proposals for legal services. A law firm delivered its proposal after the submission deadline, but the procurement officer accepted the proposal and forwarded it to the evaluation committee. After the agency issued a notice of intent to award that law firm the contract, a second law firm protested, alleging that the evaluation committee made scoring errors and that consideration of the late-filed proposal was barred by a relevant regulation and the request for proposals. The procurement officer sustained the protest, rescinded the original award, and awarded the second law firm the contract. The first law firm then protested, claiming: (1) the second law firm’s protest should not have been considered because it was filed after the protest deadline; (2) the first law firm’s proposal was properly accepted because the delay in submission was immaterial; and (3) the second law firm’s proposal was nonresponsive because that firm lacked a certificate of authority to transact business in Alaska. The procurement officer rejected that protest and the first law firm filed an administrative appeal. The administrative agency denied the appeal, and the first law firm appealed the agency decision to the superior court, which affirmed the administrative agency ruling.

 We conclude that the administrative agency acted reasonably in accepting the second law firm’s late-filed protest and deeming that firm’s proposal responsive notwithstanding its lack of a certificate of authority. We also conclude that the agency’s interpretation that its regulation barred acceptance of the first firm’s late-filed proposal is reasonable and consistent with statute.

Background

Van Ness Feldman and six other law firms delivered proposals before the June 29 deadline. Davis Wright Tremaine, in partnership with another law firm, prepared to mail its proposal on June 27, but discovered an error in the cover letter and recalled its office services messenger before the proposal actually was mailed. Davis Wright Tremaine delivered the corrected proposal to the U.S. Postal Service in San Francisco the next day — June 28 — for Express Mail delivery to the Department of Law in Juneau. The Postal Service guaranteed delivery by 3:00 p.m. on June 30, the day after submissions were due. After the package mistakenly was routed through Wenatchee, Washington, the Postal Service attempted delivery at the Department of Law on June 30, but found no one available to accept delivery. The Postal Service delivered the package to the Department of Law on July 1.

 And the winner is Van Ness Feldman. (Mike Frisch)