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Otherwise successful offer


weissmana

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Hypthetical Situation.

Let's assume the government has requested a 90 extenstion on a recently submitted RFP. We plan on granting the extension yet are considering whether to incentivize the government to make a earlier decision on the contract award by offering a 5% reduction to the prices which currently sit within our previously submitted proposal.

Question: Can we modify our proposed offer, which has already been submitted in compliance within the first timetable provided?

Question: If so and we make the modified offer, will the gov't be required to notify the other bidders of the proposed modification and the ability to submit additional proposals if they so desire?

I found the below reference and was hoping to get insight into what is meant by the wording, "otherwise successful offer"?

52.212-1, f(2)(ii) However, a late modification of an otherwise successful offer, 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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The phrase "otherwise successful offeror" means the offeror who has been selected as the successful offeror without consideration of any late modifications. Effectively, if the government has selected you for award anyway, but you then submit a late modification reducing your price, or making your offer more favorable in some way, the government may accept your late modification, and they don't have to notify other bidders of the fact that you submitted a late modification.

However, if they have selected someone else, and then receive a late modification from you – even, for example, one that might have resulted in you being selected if the modification had been made on a timely basis – they would not be able to change the selection and award to you directly, as they could in the previous scenario. In such a situation, your late modification "will not be considered," per FAR 52.212-1(f)(2)(i).

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Thanks for your response. I am confused as to how we would know if we were the selected awardee if in fact the government has yet to award the contract to anyone as of yet. They would be asking for the time extension so that they can continue to determine how to move forward.

I originally thought that "otherwise successful offeror" simply meant that if you had submitted an original offer within the initial timing requirments, then you and/or the other bidders are all "in line for the award" and may propose modifications up until the point the government makes a decision.

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Guest Vern Edwards

Such a change to your proposal would be a proposal "revision," not a proposal "modification". See the definitions in FAR 15.001. The distinction is important in procurements conducted under FAR Part 12 and 15.

The idea behind the late modification rule is this: Suppose that the proposal deadline is June 15 at 4:30pm. You send your proposal in on June 10. Then, on June 14, you decide to modify it to reduce your proposed price to make the proposal more competitive, but the government does not receive the modificatioln by the deadline. The government cannot consider the late modification when making its selection decision. But the government can take advantage of the late modification if it ultimately selects you based on your timely proposal.

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Thanks for your response. I am confused as to how we would know if we were the selected awardee if in fact the government has yet to award the contract to anyone as of yet. They would be asking for the time extension so that they can continue to determine how to move forward.

I originally thought that "otherwise successful offeror" simply meant that if you had submitted an original offer within the initial timing requirments, then you and/or the other bidders are all "in line for the award" and may propose modifications up until the point the government makes a decision.

It's not expected that you would know if you were the selected awardee. If you knew you had been selected, would you be offering to lower your price?

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Guest Vern Edwards

See The Sandi Group, GAO Dec. B-401218, 2009 CPD para. 123:

The FAR provides a limited exception for receipt of late proposals that are submitted by the “otherwise successful offeror” and which provide more favorable terms. This exception to the general “late is late” rule is intended to allow the government to receive the benefit of a more advantageous proposal from the offeror who has been selected for award, without offending the general rule that offerors must be treated equally.

* * *

[A]n offeror cannot make itself the “otherwise successful offeror” by submitting a late proposal modification; instead the offeror must already be the offeror in line for award prior to the time the late proposal modification is submitted. Phyllis M. Chestang, B–298394.3, Nov. 20, 2006, 2006 CPD para. 176 at 5 n.3. In this regard, an offeror cannot avail itself of the late proposal submission provision where the agency has not already identified an “otherwise successful offeror.” Global Analytic Info. Tech. Servs., Inc., B–298840.2, Feb. 6, 2007, 2007 CPD para. 57 5–6.

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