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By
Linda Koone on Thursday, February
20, 2003 - 12:04 pm:
What do you think of this question/answer?
Must an RFP Amendment be Addressed to a Specific Individual if
the Offeror asked that this be done?
Posted to Pre-Award Procurement and Contracting on 2/6/2003 by
Sandra Gaffney
The Scenario
In a competitively negotiated procurement, an offering company
requested in writing that all correspondence pertaining to the
solicitation be directed to 'John Doe'. The government mailed an
amendment to the company without adding 'John Doe' to the
address. The company was late in acknowledging the amendment and
providing the information required by it.
The Question
Is the government's failure to address solicitation documents to
a specific individual, if asked to do so, be considered
government mishandling so the late submission rule can be
waived?
The Answer
See FAR 14.304(b)(1) and FAR 52.214-7(b)(1). Regarding the
Government mishandling rule, it is my guidance that this rule
does not apply here. In order for the rule to apply, the offer
must have been in the Government's possession at the time of bid
opening, just misdelivered, etc. A case that states this very
rule is States Roofing Corp., B-286052, 2000 CPD 182, (Nov
2000). In this GAO case, the Comptroller General ruled that the
agency properly rejected a protester's proposal as late where
preponderance of evidence shows that the proposal was not under
government control prior to the time set for receipt of
proposals because the protester did not arrive at the place
designated for receipt of proposals until after the closing time
had passed. Because, like in States Roofing, your contractor's
proposal was not in the Government's possession at bid opening
time, it appears the mishandling rule would not applicable. This
is not legal advice. Only your agency procurement attorney can
provide legal advice after a thorough review of the
contract/solicitation, applicable case law and FAR provisions,
and all relevant facts and circumstances between the parties.
By
Anonymous on Thursday, February 20,
2003 - 12:23 pm:
I like the information on this page.
http://www.wifcon.com/pd5_101kr.htm
By
Anonymous on Thursday, February 20,
2003 - 12:40 pm:
How to answer a question without ever addressing the
issue and then completely absolve yourself of any responsibility
by pushing it off to the legal advisor.
Useless answer.
By
Vern Edwards on Thursday, February
20, 2003 - 01:50 pm:
The professor cited references to rules governing
sealed bidding, even though the questioner said that it was a
competitive negotiated procurement.
As to the question: "Is the government's failure to address
solicitation documents to a specific individual, if asked to do
so, be considered government mishandling so the late submission
rule can be waived?" The professor is right; the answer is no,
failure to address an amendment to a specific person as
requested is not mishandling, as that term is used by the
GAO. See PMTech, Inc., B-291082, Oct. 11, 2002, in which
the GAO said:
"To succeed in a challenge that government mishandling caused a
proposal to be late, however, a protester must first establish
through acceptable evidence that the proposal was received at
the government installation designated for receipt of proposals
and 'was under the Government's control' prior to time set for
receipt of proposals."
(Actually, the term mishandling is no longer used in the
FAR in this context; see FAR § 15.208.)
By
Eric Ottinger on Thursday, February
20, 2003 - 01:57 pm:
Anon 12:40,
Yes, I agree. The answer was correct but not much use.
Generally, as Anon 12:23 points out, if the government gets good
competition and makes a good faith effort to distribute the
solicitation and amendments, the unhappy offeror will not have a
successful protest. Albeit, the offeror will have a very
legitimate gripe.
If I wanted to accept this modification, I would say that it is
a late modification to an otherwise successful offer which is
beneficial to the government. Perhaps, the protester could argue
that the government was arbitrary and capricious for not taking
this tack. This assumes the protestor can make a case for being
the "otherwise successful" offeror.
Also, some amendments may not be “material.” I would refer the
person asking the question to his/her agency counsel. I can’t
blame the professor for doing the same.
Eric
North Santiam Paving Co., (Jan. 08, 1991) Comptroller General
Decision , No. B-241062., January 8, 1991
“The Competition in Contracting Act of 1984 (CICA), 41 U.S.C.
253(a)(1)(A) (1988), requires contracting agencies to obtain
full and open competition through the use of competitive
procedures, the dual purpose of which is to ensure that a
procurement is open to all responsible sources and to provide
the government with the opportunity to receive fair and
reasonable prices. In pursuit of these goals, it is a
contracting agency’s affirmative obligation to utilize
reasonable methods for the dissemination of solicitation
documents to prospective competitors. See Ktech Corp., B-240578,
Dec. 4, 1990, 90-2 CPD __. In particular, the government is
required by regulation to add to the solicitation mailing list
all firms that have been furnished invitations in response to
their requests, so that they will be furnished copies of any
amendments, unless it is known that the request was made by an
entity which is not a prospective bidder. Federal Acquisition
Regulation (FAR) §14.205(3). Concurrent with the agency’s
obligations in this regard, prospective contractors have the
duty to avail themselves of every reasonable opportunity to
obtain solicitation documents, especially in a sealed bid
procurement. See Fort Myer Constr. Corp., B-239611, Sept. 12,
1990, 90-2 CPD 200. Consequently, a prospective offeror’s
nonreceipt of solicitation documents will not justify
overturning a contract award absent significant deficiencies in
the dissemination process, the failure to receive fair and
reasonable prices, or a deliberate attempt by the contracting
agency to exclude a particular prospective offeror, even where
the late or nonreceipt has the effect of eliminating the source
from the competition. Ktech Corp., B-240578, supra.”
By
Anonymous on Thursday, February 20,
2003 - 03:16 pm:
Why not preclude this sort of thing with solicitation
instructions? At one time our organization noted a dramatic
increase in such quibbling. Callers were beginning to consume
significant time with questions and requests that had the
appearance of corporations either needing baby sitting or
attempting to set up protests. Some were sending in questions
pages long dealing with minute trivia of Proposal format. None
would have posed a real threat in protest. They were beginning
to be sand in the gears.
To put it in a nutshell, we took the time to look at the trend
and beef up our instructions in precise areas to require more
responsible behavior. Some persisted. They quickly shut up when
directed to a specific direction they had failed to heed and our
clear statement that failure to follow instructions had
consequences. A little up front work really can minimize
"#&%$#&^" and eye rolling at such gamesmanship when your people
are otherwise burried in real work.
I suggest that this particular gripe is not a common problem. It
can also easily be solved and potential protest threats avoided
by a statement that further communication on the solicitation
will be sent only to an organizational address on record with
the agency. That address can only be changed by reliable,
designated procedures. You can simply point to that if, for
example, there is a claim they changed the address via voice
mail to one of your numbers.
I do not advocate being petty or developing you own overly
picky, minute instructions. A few in the corporate community do
try to play these games. Some may simply be inexperienced or
poorly advised by some mentor. Some analysis of those efforts
devoted to improving clarity of and fortifying instructions
against such gaming can pay dividends by minimizing the time
consumed in your people having to join that game.
It is also useful to note that electronic contracting is a way
of placing the burden upon the interested offerors to check your
designated posting area for such material.
By
Vern Edwards on Thursday, February
20, 2003 - 05:56 pm:
Somebody clue me in. I thought amendments were posted
electronically on FedBizOpps. Are agencies still printing and
mailing amendments?
By
FormerCO4AF on Thursday, February
20, 2003 - 06:28 pm:
Vern,
I agree, FedBizOpps is supposed to be the Governmentwide gateway
per FAR 7.303. This example is more proof as to the benefits of
its use. However, I'm finding that a lot of agencies are using
the site for notices and providing links to their own pages
where potential contractors can submit requests for mailed
documents.
Eric,
Why would you say the action was arbitrary and capricious? I'll
have to exercise my right to disagree with you and say that
thoughts like that lead to useless protests. Why should the
Government have to take the time to change mail lists for
individual names? Thats why we put solicitations out that tell
contractors to list the solicitation number on the mailing. I
would have to say the Government could find the contractors
request to "personalize" the RFP mailing as arbitrary and
capricious. Who's got time to do that when there's times you may
have up to 100 companies requesting the solicitation.
Thats another reason I like to post electronic documents, no
plan holders list. Just toggle the interested parties option in
FedBizOps.
By
Eric Ottinger on Thursday, February
20, 2003 - 08:28 pm:
FormerCO4AF,
Note that I said "perhaps." It's an argument.
How do you know that the Government was being asked to change
the bidder's list. I suspect the bidder's list address included
"ATTN: Mr. John Doe" and, for what ever reason, the amendment
went out with a different address.
The offeror has made a big investment in a proposal and lost out
for a reason that must look like bureaucratic quibble. I would
expect them to be sore.
Eric
By
Vern Edwards on Thursday, February
20, 2003 - 08:56 pm:
Eric and FormerCO4AF:
Eric, I'm not picking a fight, but I have to say that any
company which has decided to submit a proposal in response to a
government solicitation should instruct its receptionists and
mail room (a) to be on the lookout for envelopes bearing a
government return address and (b) to forward all such envelopes
to the proposal manager or proposal organization immediately, no
matter what the specific address on the envelope. The proposal
manager should remind the receptionists and mail room of that
requirement first thing every morning, and check at least once a
day for any such mail.
It is foolish for a company to invest time and money in a
proposal without taking such elementary precautions. It is
beyond foolish to rely on a busy government procurement office
to remember to address the mail to a specific person in the
company.
A firm that makes a big investment in a proposal and loses out
because it failed to ensure that its own organization was on the
alert for important mail from a prospective customer has no
right to complain about a busy customer's failure to address
correspondence in a specific way.
By
Eric Ottinger on Thursday, February
20, 2003 - 09:11 pm:
Vern,
I think the bit that I quoted from the Comp. Gen. is the final
word. However--
You and FormerCO4AF are both making assumptions. I am just
trying to look at all sides and possible arguments, and admit
that I don't have all of the facts. All and all, I don't think
it would be a bad idea for Gaffney to consult her GC.
Eric
By
Anonymous on Thursday, February 20,
2003 - 11:28 pm:
To my earlier suggestion, that the government settle
this in instructions, I might add that the "organizational"
address requirement is a favor to a company foolish enough to
pin everything on an individual. That individual may be on an
operating table and then not communicating well for some time
while deadlines slip by. Any sensible company will have an
address that will go to the organization, the proposal team or
some such, who will know exactly what this is all about and what
to do.
It seems to me sensible government offices will use the
electronic methods that make most of this a thing of the past.
Obviously some are not.
By
Anonymous8 on Friday, February 21,
2003 - 08:40 am:
Hi Vern,
We post to FBO and reference our web site. Also, for larger
procurements, generally send e:mail to those sources who have
expressed interest/responded to synopsis to tell them that an
amendment is out.
By
Vern Edwards on Friday, February
21, 2003 - 09:01 am:
It seems to me that electronic is the way to go. I'm
really surprised to hear that some agencies are still printing
solicitations and amendments and using snail mail. What's up
with that?
Anybody out there work for or with an agency that's still using
paper and regular mail. If so, please tell us why. Don't you
have computers and Internet access?
By
FormerCO4AF on Friday, February 21,
2003 - 11:43 am:
Vern,
I started working for a division of the Department of
Transportation in early 2002. My first day in the office I
walked into an envelope stuffing party. There were hundereds of
copies of a solicitation to be mailed out. Less than three
months later we are now posting documents electronically.
Last stage of the EC conversion is the plans sheets. We're
working on getting plan sheets out electronically using a server
in our office. Our plan sheets can run hundereds of pages so the
4 meg restriction on FedBizOpps becomes a problem.
I tracked our first electronic project (we did it dual mail and
EC) It was a small project, historically very few contractors
interested. We used over 52,000 sheets of paper! Where it was
costing us $3,000 or more (labor, materials etc..) it now costs
on average less than $500.00 and thats just for the bid
packages.
One of my favorite things about using electronic is the
contractors have access within about an hour of posting. It was
a shock to some people here to start receiving inquiries the
same day we issue the solicitation!
Some people express concerns about some of the remote areas of
the US and Alaska where you don't have DSL and phone lines are
not the greatest. I believe technology is well beyond that
limitation and if companies want to stay competative, they'll
invest a little more and get rid of those old 28.8 modems and
upgrade their computers from that old 286 system.
Maybe it would be useful to add an Electronic Commerce area to
Wifcon to discuss technology issues/advancements/lessons
learned......
By
Anonymous on Friday, February 21,
2003 - 10:05 pm:
I am a contracting specialist for the Air Force in
Alaska. We started posting our solicitations two years ago,
first to a local web page and then to the www.eps.gov
(FedBizOps). Now, solicitations, mainly construction, can no
longer be posted electronically if they contain building
drawings or base maps. This is for security reasons (we are an
active flying base). We now have to mail a CD to a "bidder's
mailing list" to track who received the package. It seems we are
going backwards in time; however, base security demands that we
do so.
Also, in reference to earlier post, Alaska used to have the
highest use of computers in homes, schools, and businesses.
There were a lot of Federal grants to put wireless
communications into the village areas which are not accessible
by roads (only aircraft) and therefore did not likely have power
lines or phone lines.
By
John Ford on Saturday, February 22,
2003 - 03:52 pm:
Vern, in response to your post of 2/21, electronic
posting is fine as long as everyone's servers and Internet
connections are up. What happens when FBO's server crashes? I
recently saw an amendment to an RFP that was printed and faxed
to offerors because FBO was down and the amendment could not be
posted that way. This was a post bid amendment about four pages
long that only went to about half a dozen companies thus it was
a manageable exercise.
By
Vern Edwards on Saturday, February
22, 2003 - 07:54 pm:
John:
Yeah, crashes are a problem and I suppose that they will always
be with us.
But I remember things going wrong with the mail. There have been
a lot of protests by offerors who didn't receive this or that
amendment which the agency claimed to have mailed. I guess
there's no such thing as a perfect system.
One problem with mailing is that, as I recall, about two thirds
of a typical list of bidderswas made up of prospective
subcontractors and the idly curious.
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