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VETCON

Sealed bid- Late Price Modification

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Hi Everyone- New here, and love the forum. Lots of interesting topics, and an equal amount of intelligent discussion and opinions!

 

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If they submitted a bid, then withdrew their bid (asked for it back), and then resubmitted after the deadline, it would be a late bid.

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This is how we are interpreting it as well, however the agency believes differently as they are accepting what the contractor says was his "initial" bid. 

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Whether it was the "initial" bid or not has no bearing on whether the bid was late.  Consider if the company withdrew their "initial" bid (asked for it back) and then resubmitted the same bid without changing anything 4 minutes after the time specified (as alleged).  The "initial" bid would then be late and cannot be considered unless it fulfills the criteria of FAR 14.304(b).

 

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4 hours ago, VETCON said:

...the agency initially rejected their bid. The contractor then protested. The agency took corrective action, and accepted what the agency referred to as their "Initial Bid".

:blink: Is that sequence of events truly accurate??  Who heard the protest? Who directed the "corrective action" of accepting an altered, late bid (as Matthew points out, it was late regardless of "version")?   Were both bids low?

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Both bids were low. It went through GAO, the agency decided to take corrective action rather than make their case and have GAO decide. The corrective action was to accept their "initial bid". 

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3 hours ago, Matthew Fleharty said:

Whether it was the "initial" bid or not has no bearing on whether the bid was late.  Consider if the company withdrew their "initial" bid (asked for it back) and then resubmitted the same bid without changing anything 4 minutes after the time specified (as alleged).  The "initial" bid would then be late and cannot be considered unless it fulfills the criteria of FAR 14.304(b).

 

This FAR states that a late bid can be considered if it's in the best interest of the government. My issue is, they have to take the contractor's word for what their "initial" bid was. Because we cannot truly know what their initial bid was, shouldnt either bid be considered modified? The CO never saw what their bid was before the contractor took the sealed bid package from him and modified the contents. 

My huge problem with it is that the contractor was given an opportunity to modify their bid after knowing exactly how many bidders were bidding and who those bidders were. The other bidders (including myself) were not afforded the same opportunity to revise our numbers after being given this additional information.  They were given a clear competitive advantage over the rest of us. 

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@VETCON

Stop complaining. What do you want us to say or do? What's the point? If you were wronged, hire a lawyer and file a protest. If you're not going to file a protest, or if you waited too long and a protest would be untimely, then conversation over. Tough luck. Better luck next time.

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5 hours ago, Vern Edwards said:

@VETCON

Stop complaining. What do you want us to say or do? What's the point? If you were wronged, hire a lawyer and file a protest. If you're not going to file a protest, or if you waited too long and a protest would be untimely, then conversation over. Tough luck. Better luck next time.

It is under protest. If you read my original post i was asking, if you are interested, any input or relevant (gao) cases you may know of would be great. I thought it an interesting/oddball enough scenerio where it might draw some interest. In the very least some intellegent discussion would have been cool. If you arent interested noone is forcing you into this thread are they?

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@VETCON

You're right.

Here's the problem. Late bid cases can be tricky. In a case like yours, the outcome might turn on some fact that seems unimportant to you or on some aspect of the situation that you do not know about. As the GAO has said:

Quote

Acceptable evidence to establish the time of receipt of a bid includes the agency's time/date stamp on the bid, other documentary evidence of receipt maintained by the agency, and oral testimony or statements of government personnel.

Emphasis added.

This kind of forum is not well suited to interrogation in pursuit of more information from a poster, especially from one who is not deeply familiar with the rules. Such a poster might unintentionally omit something, unintentionally mischaracterize something, or give an ambiguous description of something. For instance, in response to REA's question, "Were both bids low," you wrote, "Both bids were low." What does that mean: that they were identical (equal low bids) or that they were both lower than all other bids, but one was lower than the other? In any case, I don't see how that would be relevant to the resolution of your issue.

It may be that in your case it is clear to the government, based on an examination of the other guy's bid documents or based on other information, that his bid was lower than yours both as originally submitted (then withdrawn) and as modified (then resubmitted). If so, the agency may have based their corrective action on FAR 52.214-7(b)(2):

Quote

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

Consider, for instance, the GAO's decision in the matter of B.L.I. Construction Co., Inc., B-239246, 90-2 CPD ¶ 85, July 30, 1990, which involved events similar to yours. I will quote it at length:

Quote

Bid opening was scheduled for 2 p.m. on April 5, 1990, in the Warden's Conference Room at the U.S. Penitentiary in Atlanta. Shortly before 2 p.m., the contracting officer entered the reception area, where all five bidders were waiting, and proceeded to escort the bidders to the sallyport entrance to the prison en route to the conference room, where bids were to be opened. Each bidder had to be cleared by security at the sallyport; as a result of recent changes in security procedures, this process took until 2 p.m. At that point, the contracting officer announced the time and advised all bidders to hand in their bids as they passed through the sallyport. As the Batson–Cook representative, who was last in line, handed his bid to the contracting officer, he pointed out a notation on the outside of the bid envelope which read “Deduct $17,000 from bid.” The contracting officer informed the Batson–Cook representative that modifications written on the outside of bid envelopes were unacceptable, and instructed the representative to make the change on the bid schedule. The contracting officer handed the envelope back to the representative and watched as he opened the envelope, reduced the total amount of the bid on the bid schedule by $17,000, and resealed the bid. Batson–Cook's representative then handed the envelope back to the contracting officer, and the group proceeded to the conference room for bid opening. When the bids were opened, Batson–Cook's modified bid was low by $40,000.

In its protest, B.L.I. argues that Batson–Cook's bid should be rejected as late because it was returned to the bidder, changed, and resubmitted after the time for bid opening. We disagree.

As a result of recent changes in security procedures, bidders were unable to reach the Warden's Conference Room, the place for delivery of bids, and the contracting officer had not yet collected the bids by 2 p.m., the time set for bid opening. The contracting officer then actually collected the bids after announcing the time. We do not view Batson–Cook's final submission of its bid to have been late since, by his actions, the contracting officer indicated to the five bidders present that the time for bid opening would not be deemed to have passed until the bids of all those present had been collected. Thus, the contracting officer's observation regarding Batson–Cook's bid; his returning the bid with instructions; and the firm's delaying submission until it had complied with the contracting officer's instructions merely delayed the conclusion of the acceptance of bids. Hi–Grade Logging, Inc., B–222230, B–222231, June 3, 1986, 86–1 CPD ¶ 514.

Even if the modification of the bid schedule by Batson–Cook's representative were viewed as having been made after the time for bid opening, the bid as reduced would be acceptable under the circumstances. The modification was made in the contracting officer's presence, with the contracting officer assuring that no other changes were made to the bid schedule; in effect, the contracting officer never relinquished control of the bid after it was initially submitted. Since Batson–Cook's original bid was already low, a subsequent untimely modification reducing the bid by $17,000 could be accepted under Federal Acquisition Regulation § 52.214–7(f), as “a late modification of an otherwise successful bid which makes its terms more favorable to the Government.”

Emphasis added. That sounds kind of like your story, but it is different in important details. FAR 52.214-7 has been revised since 1990, and the pertinent rules may have been different then. Maybe the fact that the bid was modified in the contracting officer's presence was key.

Based on your account of what happened in your case, I think the outcome in your case should be different, but I haven't heard both sides of the story. I only know what you told us. I don't think you are lying, but I've been around long enough to know that sometimes an account is incomplete, or not entirely accurate, or not in accord with how other people saw things. Another problem is that you did not say whether the agency gave you an oral or written explanation of its corrective action. If they did, their explanation would be helpful, but you did not relate it.

Based on what you have told us, I think everyone who has responded to date thinks that the resubmitted bid was late and should not have been considered. I don't know what more any of us can say. It sounds like you have protested the agency's corrective action. If so, then you will learn the outcome soon.

I'm sorry that I was impatient with you.

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