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Our agency has a similar situation to the Sea Box, Inc., B-291056, October 31, 2002 GAO Case. The only difference is that late proposal was in response to an AMENDMENT to the initial solicitation.

- The KTR who submitted late in response to the AMENDMENT was on time with their proposal to the INITIAL solicitation.

- The KTR submitted his proposal via e-mail on his end at 1:30PM; The government received it at 2:30PM (30 minutes past the RFP due date).

- This late KTR is the apparent low by a significant amount.

Does the GAO case apply in this case or is the KTR protected by FAR 15.208 (2)?

Thanks.

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Assuming that you meant FAR 15.208(B)(2), 1) is the proposal otherwise successful? and 2) does the proposal modification make the proposal's terms more favorable to the Government?

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52.215-1

(ii)(A) Any proposal, modification, or revision, received at the Government office designated in the solicitation after the exact time specified for receipt of offers is ?late? and will not be considered unless it is received before award is made, the Contracting Officer determines that accepting the late offer would not unduly delay the acquisition; and?

( 1 ) If it was transmitted through an electronic commerce method authorized by the solicitation, it was received at the initial point of entry to the Government infrastructure not later than 5:00 p.m. one working day prior to the date specified for receipt of proposals; or

In the case of Sea Box, the proposal was received after 5PM so this consideration was not possible. This is an amendment received 30 mins after the due time yet long before the business day ended; the KO should accept it IMO.

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In the case of Sea Box, the proposal was received after 5PM so this consideration was not possible. This is an amendment received 30 mins after the due time yet long before the business day ended; the KO should accept it IMO.

FAR Fetched,

Really? Under what authority can the CO consider the late proposal modification? Do you think the CO has that discretion?

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Assuming that you meant FAR 15.208(B)(2), 1) is the proposal otherwise successful? and 2) does the proposal modification make the proposal's terms more favorable to the Government?

DA, you are correct, I did mean FAR 15.208 (B)(2).

1) Yes

2) Yes

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FAR Fetched,

Really? Under what authority can the CO consider the late proposal modification? Do you think the CO has that discretion?

In the clause above "...Contracting Officer determines that accepting the late offer would not unduly delay the acquisition... and received before 5PM..."

I might be wrong, but that's how I'm reading it.

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Guest Vern Edwards

FAR Fetched:

Be careful. You are about to step into a trap. It appears to me, and to Don, that you have misread the rule.

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FAR Fetched:

Be careful. You are about to step into a trap. It appears to me, and to Don, that you have misread the rule.

I've been wrong before, please show me what I'm missing here.

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DA, you are correct, I did mean FAR 15.208 (B)(2).

1) Yes

2) Yes

Ok. You have your answer. If both conditions are met, you can consider a late proposal modification.

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Guest Vern Edwards
In the case of Sea Box, the proposal was received after 5PM so this consideration was not possible. This is an amendment received 30 mins after the due time yet long before the business day ended; the KO should accept it IMO.

First, what we are talking about is a late modification, not an amendment. Second, if a late modification was sent electronically, in order to be eligible for consideration it must have been received at the initial point of entry by 5pm the day before the day on which it was due, unless FAR 15.208(B)(2) applies. In this case it was received on the day it was due, not the day before.

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Guest Vern Edwards

Don, technical correction: He can consider the modification. You said "accept."

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I've been wrong before, please show me what I'm missing here.

Ok, let's take a close look at the rule at FAR 15.208(B):

(1) Any proposal, modification, or revision, that is received at the designated Government office after the exact time specified for receipt of proposals is ?late? and will not be considered unless it is received before award is made, the contracting officer determines that accepting the late proposal would not unduly delay the acquisition; and?

(i) If it was transmitted through an electronic commerce method authorized by the solicitation, it was received at the initial point of entry to the Government infrastructure not later than 5:00 p.m. one working day prior to the date specified for receipt of proposals; or

(ii) There is acceptable evidence to establish that it was received at the Government installation designated for receipt of proposals and was under the Government?s control prior to the time set for receipt of proposals; or

(iii) It was the only proposal received.

In order to consider a late proposal, modification, or revision, three conditions must be met.

1. The proposal must be received before award is made.

2. The contracting officer determines that accepting the late proposal would not unduly delay the acquisition; and

Now, one of the three conditions at FAR 15.208(B)(1)(i)-(iii) must be met. In the case of electronic commerce, we know from reading Sea Box that FAR 15.208(B)(i) applies and FAR 15.208(B)(1)(ii) does not. So the third condition that must be met is

3. It was received at the initial point of entry to the Government infrastructure not later than 5:00 p.m. one working day prior to the date specified for receipt of proposals.

A late proposal, modification, or revision that was sent electronically on the day it was due cannot meet the third condition. Therefore, it could not be considered.

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FAR Fetched,

Really? Under what authority can the CO consider the late proposal modification? Do you think the CO has that discretion?

Don, agree and Vern thanks for pointing out the oversight on my part.

To Don's point above, do you agree than that a CO can consider a late submission (if within the criteria described herein)? This post leads me to believe you don't think so.

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Guest Vern Edwards

Don, actually you were right about "accept." I just re-read (B)(2) and it says both "consider" and "accept."

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Don, agree and Vern thanks for pointing out the oversight on my part.

To Don's point above, do you agree than that a CO can consider a late submission (if within the criteria described herein)? This post leads me to believe you don't think so.

See 15.208 (B)(1) (iii) and (B)(2):

(B)

(1) Any proposal, modification, or revision, that is received at the designated Government office after the exact time specified for receipt of proposals is ?late? and will not be considered unless it is received before award is made, the contracting officer determines that accepting the late proposal would not unduly delay the acquisition ; and?

(i) If it was transmitted through an electronic commerce method authorized by the solicitation, it was received at the initial point of entry to the Government infrastructure not later than 5:00 p.m. one working day prior to the date specified for receipt of proposals; or

(ii) There is acceptable evidence to establish that it was received at the Government installation designated for receipt of proposals and was under the Government?s control prior to the time set for receipt of proposals; or

(iii) It was the only proposal received.

(2) However, a late modification of an otherwise successful proposal, that makes its terms more favorable to the Government, will be considered at any time it is received and may be accepted.

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Don, agree and Vern thanks for pointing out the oversight on my part.

To Don's point above, do you agree than that a CO can consider a late submission (if within the criteria described herein)? This post leads me to believe you don't think so.

Yes, if the conditions are met, the CO can consider a late proposal, modification, or revision.

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.

Justin,

some of the best minds in federal contracting weighed in, and it would be reasonable to act on their advice.

But in this rare instance, they are wrong. That is, if I understood them correctly.

I assume that the due date for initial proposals passed before the Amendment was issued. I assume that this Amendment was only issued to offerors who had submitted timely responses.

Based on the scenario that you described, you may NOT consider and may NOT accept the late offer.

Your parsing of a difference between a response to the original solicitation and a response to an amendment is inaccurate. The response to the Amendment is a new response, a different offer, to a different solicitation.

It is NOT "a late modification of an otherwise successful proposal," because when the Government issued the Amendment, it declared the earlier Solicitation null and void, and replaced it with the Amended Solicitation.

So the earlier, timely and "successful" proposal was also void. It doesn't matter if the Amended Solicitation is 99.99% the same as the original solicitation.

When the Government issues an Amendment, they are declaring that the requirement is changed in some material respect.

Here's what "a late modification of an otherwise successful proposal" means:

1.__a solicitation is issued.

2.__responses are timely received.

3.__after their offer is sent to the Government, before or after responses were due, and without any prompting from the Government in the form of an Amendment, one offeror modifies their offer to make it more favorable to the Government.

This can be in response to negotiations, and even apparently in response to a request for clarification, or even completely out of the Blue.

4. At some point, whether before or after the late modification is received, the Government determines that this offeror's ORIGINAL offer was the best, among all of the timely offers, and is in line for award.

......

Alas, as a big fan of Geo-SEIS Helicopters' "late-is-late" rule, I reluctantly admit that you can easily fix this:

issue another Amendment, changing more than just the due date.

.

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Guest Vern Edwards

brian:

I don't accept your reasoning. You said:

Based on the scenario that you described, you may NOT consider and may NOT accept the late offer.

Your parsing of a difference between a response to the original solicitation and a response to an amendment is inaccurate. The response to the Amendment is a new response, a different offer, to a different solicitation.

It is NOT "a late modification of an otherwise successful proposal," because when the Government issued the Amendment, it declared the earlier Solicitation null and void, and replaced it with the Amended Solicitation.

So the earlier, timely and "successful" proposal was also void. It doesn't matter if the Amended Solicitation is 99.99% the same as the original solicitation.

When the Government issues an Amendment, they are declaring that the requirement is changed in some material respect.

Formatting as in the original.

I disagree. First, what is the basis for your assertion that an amendment to a solicitation voids the initial solicitation and any offers (bids or proposals) submitted in response to the initial solicitation? Can you show us a regulation or any case law to that effect?

Second, see the definition of "proposal modification" in FAR 15.001 and 52.215-1(a), which defines that term in part as "a change made to a proposal... in response to an amendment... ."

Third, based on the official definition of proposal modification, your description (not quoted) of what would constitute a late modification of an otherwise successful proposal is wrong.

Finally -- and this is a technicality not pertinent to the discussion -- an amendment need not change a requirement in a material respect.

I searched the decisions of the GAO and the Court of Federal Claims for anything that would support your assertions and could find nothing. So, unless you can produce something other than your own unsupported thinking, I don't see why any of us should buy your argument.

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