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Amendment After Receipt of Proposals


Don Mansfield

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Scenario: FAR Part 15 competitive negotiation. Offeror A submits a late proposal that cannot be considered by the Government. The contracting officer wants an offer from Offeror A, so he extends the deadline for receipt of offers by issuing an amendment to all parties that received the solicitation. The Government will accept offers from all sources, or revised offers from those that have already submitted offers, by the revised deadline for receipt of offers.

Question: Can the Government consider a timely proposal from Offeror A?

I'm familiar with the Geo-Seis Helicopters decision. The facts in my scenario are different.

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Don – A post that has the possibilities of creating lots of questions but my quick response is that in your case a timely response to the extension could be considered as the CO, per GAO case law, has the prerogative to extend closing dates after the closing date has passed in specific circumstances. With your twist of your scenario that even new proposals would be entertained from any and all is my tipping point as it would seem such a stipulation is with intent to enhance competition (absent some other intentioin by the CO that might be considered as inapprotriate). Whether GAO would agree with me who knows and they might even say to me directly that I am wrong.

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Guest Vern Edwards

The COFC's decisions are not binding on the GAO, and a decision by one judge on the COFC is not binding on the other judges. Has the GAO ever acceded to Geo-Seis? How many other judges on the court have followed Geo-Seis on that issue since it was decided in 2007, almost five years ago?

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The COFC rejected the GAO's interpretation of the "late is late" rule in the Geo-Seis Helicopters decision. See http://www.uscfc.usc...W.GEO073007.pdf. The Varicon case that you referenced is specifically mentioned in the decision.

True, but as Vern pointed out those cases are not binding and the two entities dont always agree.

In reality how would any potential offeror even know the reason for the change in proposal due date absent you telling them?

I sense you are leading up to a larger point...?

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Vern,

I don't know of any cases since the Geo-Seis Helicopters decision that interpret the "late is late" rule.

Darby,

For argument's sake, let's assume that the other judges on the COFC would follow Geo-Seis Helicopters in factually similar cases. I think that the contracting officer in my scenario has found a permissible way around the COFC's strict interpretation of the "late is late" rule.

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In Varicon, the CO received a late proposal and then tried to consider it by extending the deadline. In my scenario, the CO receives a late proposal and does not consider it. Instead, the CO extends the deadline and the offeror submits another proposal before the revised deadline.

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In Varicon, the CO received a late proposal and then tried to consider it by extending the deadline. In my scenario, the CO receives a late proposal and does not consider it. Instead, the CO extends the deadline and the offeror submits another proposal before the revised deadline.

Ultimately is there really any difference between the two? The end result is the same.

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A post-closing extension for the reasons stated by the OP would seem to be for the sole purpose of providing preferential treatment for a favored contractor. A review of FAR 3.101-1 may be worthwhile:

"Government business shall be conducted in a manner above reproach and, except as authorized by statute or regulation, with complete impartiality and with preferential treatment for none...The general rule is to avoid strictly any conflict of interest or even the appearance of a conflict of interest in Government-contractor relationships."

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Guest Vern Edwards

Ultimately is there really any difference between the two?

I don't see any difference. Same issue: changing the deadline after the deadline without changing the requirement.

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The issue is not the extension after the deadline has passed. The issue is the consideration of the proposal.

Let's say that the CO sets a deadline for receipt of proposals of February 9 @ 3:00p. Offeror A submits its proposal (dated 9 February) @ 3:15p and none of the conditions for considering a late proposal apply. According to Geo-Seis Helicopters, the CO cannot consider the February 9 proposal, even if he extends the deadline after the fact. Instead, the CO extends the deadline to February 10 @ 3:00p and Offeror A submits another proposal (dated 10 February) @ 2:00p. Couldn't the CO consider Offeror A's February 10 proposal?

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Quick response withdrawn. Reason is a hard read of Geo - Seis discussion on regulatory review and this quote - "This regulatory history amply demonstrates that

the government’s and Presidential’s argument that agencies may circumvent that “late is late” rule by issuing post-hoc amendments to the solicitation to extend the closing date or time is unavailing."

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Guest Vern Edwards
The issue is not the extension after the deadline has passed. The issue is the consideration of the proposal.

In Geo Seis the protester argued that a CO cannot extend the deadline after it has passed in order to consider a late proposal. It challenged the post-deadline extension as a violation of the "late is late" rule. The court found that a CO may not extend the deadline after it has passed in order to consider a later proposal.

In your scenario, if challenged for extending the deadline after it had passed, you are going to have to explain why you did it. What would your truthful explanation be? What would you truthfully give as your reason? Please note the following from the Geo Seis court:

[T]he government argues that the Military Sealift Command's post-hocissuance of Amendments 9 and 12 was within the contracting officer's discretion. But the very rationale cited by the Command's Contracting Officer at the time she issued those amendments—that changing the closing date and time for submission of the first and second revised proposals was “in the best interest of the government,” —was considered in the proposed FAR § 15.207(B) and ultimately rejected.Compare 61 Fed.Reg. at 48,386, with 62 Fed.Reg. at 51,235. Similarly, the Councils rejected the proposed version of [section] 52.215–1( c)(3)(ii)(A) that stated that late revisions “shall be considered at the Source Selection Authority's discretion.” Compare 61 Fed.Reg. at 48,392, with 62 Fed.Reg. at 51,259. The rejection of the proposed revisions to the “late is late” rule apparently resulted from public comments that those proposals “gave too much discretion to [contracting officers].” Ralph C. Nash & John Cibinic, The FAR Part 15 Rewrite: A Final Scorecard, Nash & Cibinic Report, Vol. 11, No. 12, ¶ 63 (1997). Consequently, the Councils reverted to the previous “late is late” rule under the former FAR §§ 15.412( c), 52.215–10, with its stricter rule placing minimal discretion in the hands of the contracting officer. 62 Fed.Reg. at 51,224; Nash & Cibinic, The FAR Part 15 Rewrite: A Final Scorecard, ¶ 63. This regulatory history amply demonstrates that the government's and Presidential's argument that agencies may circumvent that “late is late” rule by issuing post-hoc amendments to the solicitation to extend the closing date or time is unavailing.

References to the record omitted.

Okay, we know Offeror A submitted a late proposal that could not be considered. So why did you extend the deadline? Did your requirements change?

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I would agree with Vern's assessment. If you issued/re-opened the solicitation response time, you would/should document why you did so. Otherwise I can bet that the company that did submit on time will protest based upon this, especially if they end up losing. Seems like a run around the rules that a court would see through. Now if you had not received any proposals or if something changed on your requirements, I can see changing the deadline. But changing the deadline by one day seems odd and only done to get this vendor into the field of play. Sounds like bias at that point.

My question would be why did this vendor submit late? Also when you extended the solicitation did you also notify the company that submitted the on-time proposal?

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Guest Vern Edwards

Don:

How many proposals did you get? Have you evaluated them yet? Why do think you need more competition? Were none technically acceptable? Were none reasonably priced? Why do you think you'd get more competition if you didn't get enough on the first go-round, especially since you haven't changed your requirements? Did you allow too little time for proposal prep?

You can never be sure what will work and what won't. The problem with your idea is that what you want to do sounds like what the COs did in the GAO cases that the court rejected. We know that you can probably get by with it at GAO, but I have serious doubts about how the COFC would receive it. It seems to be a transparent dodge.

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I agree with Vern with a couple of additional thoughts. I am reading between the lines of Geo-Seis but thoughts all the same.

While not specific to your question the matter of 15.206© and 52.215-1 were addressed in Geo-Seis. As such the Court interpreting GAO on the matter of 15.206© opined that late is late as 52.215-1 has precedent. Following this conclusion my thinking is if the requirements or terms and conditions did change and you issued an amendment it is sent only to the those not eliminated from competition so A does not get an amendment because they were late and therefore eliminated. So why, if there were no changes but solely an extension of time by amendment, does A who's offer would not be considered because they were late now get to make an offer for consideration? Simply A is out (late is late and will always be late) with or without a change to requirements and terms and conditions.

Ref. Excerpt from Footnote 27 of Geo-Seis.....

“FAR § 52.215-1©(3)(ii)(A) specifically addresses the consequences of a late proposal and must be given precedence over any potentially conflicting interpretation of FAR § 15.206©, which is principally concerned with the issuance of amendments to solicitations.”

And

“The plain language of FAR§ 52.215-1©(3)(ii)(A) does not support the government’s interpretation that the “late is late” rule is a sort of one-way ratchet, always operating in the government’s favor.”

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