Two offer extensions

[California2012]

We submitted a bid to an RFP in September 2019.  Our bid was valid for 90 days per the solicitation.  They then wrote back asking for a 45 day extension, to which we agreed.  That 45-day window is almost up, and they've yet to award.  They've now come back asking for another 30 day extension.  I therefore have several questions please:

Since by the time of award (in mid March), almost 6 months would have passed since the bid submission date, I may have shifted some resources to other projects that have opened up to me.  In other words, I had planned our resources for the project to start by Jan at the latest.  Now, it looks like it may start by late March at the earliest, assuming they don't come back asking for a third extension. 

My questions are:

(1) If we agree to the extension, and assuming we are awarded the contract but I cannot remobilize my resources to meet the NTP quickly enough, can I decline the award without repercussions?

(2) If we decline the extension, can we still ask for feedback on our proposal, particularly the technical part where we feel we could use the feedback to help us in refining future proposals?

I've reviewed the FARs and all and honestly can't find a conclusive answer on what happens if you're rewarded a contract (after several extension requests) but choose not to accept it.  

Any guidance appreciated.

[C Culham]

 

5 hours ago, California2012 said:

(1) If we agree to the extension, and assuming we are awarded the contract but I cannot remobilize my resources to meet the NTP quickly enough, can I decline the award without repercussions?

 FAR 15.208(b)(2).  Just mentioning for consideration in your discussion with legal counsel. 

[joel hoffman]

On 1/23/2020 at 7:34 AM, C Culham said:

 

 FAR 15.208(b)(2).  Just mentioning for consideration in your discussion with legal counsel. 

Late proposal ? Carl,  I don’t think that is relevant to the questions here.

”(b) (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.“

[C Culham]

1 hour ago, joel hoffman said:

Late proposal ?

Joel - The reference is to a late modification to a proposal, not a late proposal.  You tell me.  If the RFP is still open or in other words no award has been made yet and if the OP decided to say yes to an extension could they submit a modification to their proposal?   Why or why not?

[joel hoffman]

Carl, sorry. I meant “late modification to an otherwise successful proposal”.

Yes they could submit a modification, if they have known replacements,  which they feel would improve their initial proposal.

But the government might not accept the late proposal modification, even if they are the otherwise successful proposer.

It is something the company could consider doing in lieu of simply withdrawing, though. 

[joel hoffman]

Yes, the described circumstances don’t appear to fit the situation where the original poster would be in a position to improve its original proposal. 

That is why I originally asked Carl what he was referring to. It did not appear to be a relevant alternative due to the circumstances described

However, it is a possible option. 

[C Culham]

39 minutes ago, joel hoffman said:

Carl, sorry. I meant “late modification to an otherwise successful proposal”.

Yes they could submit a modification, if they have known replacements,  which they feel would improve their initial proposal.

But the government might not accept the late proposal modification, even if they are the otherwise successful proposer.

It is something the company could consider doing in lieu of simply withdrawing, though. 

@Ibn Battuta 

Did not quote your post but Joel expands on what I was getting at.   Not declining but possibly modification along with acceptance of the extended date.  Just my thoughts on all options available whether anyone finds the idea good and one that the government might accept or not, yet still an option as I noted that the OP might want to throw in the mix when discussing with legal or expert counsel.

I would not personally try to guess on anything that might work or not without all the facts but I do not have qualms in suggesting an option that was not yet suggested in the thread.  It seems a position you too subscribe to by suggesting that the OP seek legal counsel.  I will leave to you to tell the contractor via responses to me what is good or bad as an idea, not my gig.

[joel hoffman]

Carl, are you referring to a proposal modification prior to any award notification? 

[C Culham]

2 hours ago, joel hoffman said:

Carl, are you referring to a proposal modification prior to any award notification? 

Yep, and I have reread the OP's post.  I see nothing that indicates award at this point.

[joel hoffman]

52 minutes ago, C Culham said:

Yep, and I have reread the OP's post.  I see nothing that indicates award at this point.

I agree. 

[C Culham]

4 hours ago, Ibn Battuta said:

there are two possible scenarios in which the offeror could seek a revised schedule:

As I have stated there is a third.....and the specific facts will dictate whether the third is available or not.

http://www.wifcon.com/cgen/40972210.pdf

http://www.wifcon.com/cgen/410420.pdf

http://www.wifcon.com/cgen/410420.pdf

https://www.gao.gov/products/D10430#mt=e-report 

https://www.gao.gov/products/B-409679.2#mt=e-report

5 hours ago, Ibn Battuta said:

proposed revised delivery schedule

I do not know where this came from as one could modify their costs as opposed to a delivery schedule.  Such as supplementing the OP's workforce with subcontractors to deal with the conflict of available staff due to a delay in award.

5 hours ago, Ibn Battuta said:

If the "mod" is not to correct a mistake, then it is a "proposal revision," not a "proposal modification,"

FAR 15.001 (emphasis added)

"“Proposal modification” is a change made to a proposal before the solicitation closing date and time, or made in response to an amendment, or made to correct a mistake at any time before award.

“Proposal revision” is a change to a proposal made after the solicitation closing date, at the request of or as allowed by a contracting officer, as the result of negotiations."

As noted I am good with providing 15.208(b)(2) as a reference to consider.

[C Culham]

1 hour ago, Ibn Battuta said:

Some of the posts at this website are really, really strange.  Reading them comes as a shock.

Like what a personal definition of a proposal modification or revision and that as defined in the FAR?

[C Culham]

51 minutes ago, Ibn Battuta said:

@C Culham Sir, I do not think that I am intelligent enough or know enough about contracting to understand you. Your writings are beyond my reading skill.

In all sincerity, I wish you well, and promise never to disagree with you again.

Really?  My writing?  I simply quoted you and the FAR.  But have it your way to give me the credit, thank you. 

Nice cover, sir.

[joel hoffman]

I believe that Ibn’s initial post was very good.

I also agree with Carl that - if the OP wants to stay in the competition, he/she could agree to the latest proposal extension and then submit a proposal modification . The Government could consider it or reject it - assuming that the OP was or will be the OTHERWISE successful offeror based upon its original proposal.

We also don’t know if the government has selected the winner but cannot yet make award for ?? Reasons.  The OP may already be the otherwise successful offeror.

The proposal modification would have to be more advantageous to the government and not include any revisions to the Solicittion terms and conditions.**

The government could reject the proposal modification.   I don’t know If the government can then award based upon the initial offer - which the OP probably wont be able to deliver. I haven’t had time to read Carl’s referenced cases. When I can, I’ll read up. I don’t know if a proposal modification nullifies any conflicting terms and conditions in the initial offer if the government rejects the modification. That’s where the OP needs to get some legal advice - if it wants to consider modifying its proposal/offer. 

** For example, the successful offeror would have to be ready to perform upon award and notice to proceed or whenever the contract requires. A proposal modification to delay the start would be a revision to the solicitation terms and conditions (affects the competition).

[here_2_help]

On ‎1‎/‎23‎/‎2020 at 12:08 AM, California2012 said:

We submitted a bid to an RFP in September 2019.  Our bid was valid for 90 days per the solicitation.  They then wrote back asking for a 45 day extension, to which we agreed.  That 45-day window is almost up, and they've yet to award.  They've now come back asking for another 30 day extension.  I therefore have several questions please:

The OP didn't mention contract type or dollar value. We don't know if the solicitation contemplated award pursuant to Part 12, 13, 14, or 15 procedures. So it's hard to determine whether or not taking nearly six months to make contract award is reasonable. Still, I can't help wondering what this delay is going to do to the contracting office's PALT statistics. Hard to imagine a near-doubling of the anticipated award time is a good thing.

I wonder who even looks at the PALT statistics? Does anybody in a position of authority ever take action based on what they are saying?

[C Culham]

Are not proposal modifications  (15.001) (a) a change made to a proposal before the solicitation closing date and time, or (b) made in response to an amendment, or (c) made to correct a mistake at any time before award?

Is not possible that the OP could make a proposal modification that is a “change made to a proposal” but if submitted it would therefore be late yet  as provided by the whole of 15.208 (and 52.215-1) as late it is received before award is made, the contracting officer determines that accepting the late proposal modification would not unduly delay the acquisition; AND  it is an otherwise successful proposal, that makes its terms more favorable to the Government, and as such be considered and be accepted?

In the alternative we have not been provided with the detail as to how the extension to acceptance has been accomplished but I would offer that even if not done as a formal amendment to the solicitation it could be construed as such if offered to all offerors.  Then the OP's modification is offered in response to amendment.

Likewise we do not even know if there other respondents to the RFP.   Heck maybe the OP’s has been evaluated, is the successful offer so to speak and the government is asking only the OP to extend acceptance.   What then?

15.208(b)(2) could fit lots of places where we have no detail.

[C Culham]

15 minutes ago, Ibn Battuta said:

A late proposal modification is, therefore, a change made before the closing date and time, but received after the deadline. A chance made after the date and closing time is a proposal revision, as defined in FAR 15.001. Revisions can be made only through discussions.

 

You have proposals, you have modifications and you have revisions.  Modifications and revisions are defined in 15.001 but "late" modifications, revisions (and proposals) are not.   "Late" proposals, modifications and revisions are defined in 52.215-1 as "Any proposal, modification, or revision received at the Government office designated in the solicitation after the exact time specified for receipt of offers".

 

 

[C Culham]

19 minutes ago, Ibn Battuta said:

You really should learn to interpret regulations by reading them as a whole.

I do give up but I am on a yacht of excellence.  In my view it is you that is clinging  to flotsam by not reading the regulations and contract provisions as a whole.  I bet you wish that your quoting of regulation wasn't absent the exact wording of the FAR.   Per the GAO.....

“As set forth in FAR § 15.208, offerors are responsible for submitting proposals, revisions, and modifications to the proper place at the proper time. Late submissions of proposals, revisions, and modifications may not be considered, except, as is pertinent here, where the late submission is received before award, and is a late modification of an otherwise successful proposal that makes its terms more favorable to the government.” 

Late being after the date/time set for receipt of proposals.

1 hour ago, Ibn Battuta said:

A change made after the date and closing time is a proposal revision, as defined in FAR 15.001

No it is not - a revision is (15.001) is a change to a proposal made after the solicitation closing date, at the request of or as allowed by a contracting officer, as the result of negotiations.  

1 hour ago, Ibn Battuta said:

I would not expect a CO to issue an "amendment" asking for an extension. But anything is possible. Facts not in evidence. Besides, what would FAR 15.208(b)(2) have to do with that?

Nothing but the OP could provided a proposal modification that would not be considered late in response to an amendment (FAR 15.001). 

 

1 hour ago, Ibn Battuta said:

What does FAR 15.208(b)(2) have to do with that scenario?

Everything as the OP's proposal would otherwise be successful therefore a late modification could be considered and accepted.

[joel hoffman]

I thought I stated that, for  a late proposal modification from an otherwise successful offeror to be considered, it must not alter the terms and conditions (E.g., allow later performance or later start of performance), thus affecting the competition.

The government cannot make award on the basis of a proposal that materially deviates from the solicitation requirements.

To accommodate that would require the government to issue an amendment to the delivery timeframe, conduct discussions and seek revised offers.

“A proposal that takes exception to a solicitation’s material terms and conditions should be considered unacceptable and may not form the basis for an award. CHE Consulting, Inc., B‑406639, June 28, 2012, 2012 CPD ¶ 190 at 2-3; Solers, Inc., B‑404032.3, B-404032.4, Apr. 6, 2011, 2011 CPD ¶ 83 at 3-7; CAMS Inc., B‑292546, Oct. 14, 2003, 2003 CPD ¶ 191 at 2. Material terms of a solicitation are those which affect the price, quantity, quality, or delivery of the goods or services being provided. Seaboard Elecs. Co., B-237352, Jan. 26, 1990, 90-1 CPD ¶ 115 at 3.”

Edited January 29, 2020 by joel hoffman
Added explanation and references to Fundamental Principle

[here_2_help]

3 hours ago, Ibn Battuta said:

Who cares about PALT? Who even knows what it is? Have you seen OFPP's notice and request for public comments in the Federal Register, January 21.

Improvements to PALT are being touted by Ms. Lord. It's defined, or else it will be when the proposed rule you cite is definitized.

I didn't say that I thought it was a Key Performance Indicator. I believe, though, that Senior DOD Leadership think its a Key Performance Indicator.

[here_2_help]

2 hours ago, Ibn Battuta said:

@here_2_help OFPP is not clear about the purpose of the definition. PALT tells you how long some process takes, but it does not tell you why it took so long. That's the information we really need.

Well, yes. But that's not the way the wind is blowing at this time.

[C Culham]

4 hours ago, Ibn Battuta said:

Then I'll ignore the errors in the rest of your most recent post.

Most recent post- What errors sir?  Can you get specific?  I can.....

 

7 hours ago, C Culham said:

...I am on a yacht of excellence.  In my view it is you that is clinging  to flotsam by not reading the regulations and contract provisions as a whole.  I bet you wish that your quoting of regulation wasn't absent the exact wording of the FAR.  

I do have a yacht - true as I consider it a yacht.  You clinging to flotsam admittedly unknown truth just like your suggestion that I am.   "I bet you ...." True...as your quotes from 15.001 have been absent exact wording.

7 hours ago, C Culham said:

“As set forth in FAR § 15.208, offerors are responsible for submitting proposals, revisions, and modifications to the proper place at the proper time. Late submissions of proposals, revisions, and modifications may not be considered, except, as is pertinent here, where the late submission is received before award, and is a late modification of an otherwise successful proposal that makes its terms more favorable to the government.”

True - an exact quote from a GAO decision.

7 hours ago, C Culham said:

Late being after the date/time set for receipt of proposals.

True.   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”..."

 

7 hours ago, C Culham said:

No it is not - a revision is (15.001) is a change to a proposal made after the solicitation closing date, at the request of or as allowed by a contracting officer, as the result of negotiations.  

True - As noted the definition at 15.001 reads exactly as follows - "“Proposal revision” is a change to a proposal made after the solicitation closing date, at the request of or as allowed by a contracting officer, as the result of negotiations."  You personal rendition is absent the bolded emphasis.   In other words a proposal revision is made after closing date but only if at the request of or allowed by the CO, as a result of negotiations.  One can not willy nilly just submit a revision the CO must request or allow.  And yes a revision can be late as well if it is not delivered in the time requested or allowed by the CO.

7 hours ago, C Culham said:

Nothing but the OP could provided a proposal modification that would not be considered late in response to an amendment (FAR 15.001). 

True - Nothing relates to 15.208(b)(2)  but 15.001 provides that a “Proposal modification” is a change made.... in response to an amendment..."

 

7 hours ago, C Culham said:

Everything as the OP's proposal would otherwise be successful therefore a late modification could be considered and accepted.

True - but at this point why say it again as you will not believe it.  By example you will not believe....

1)RFP released

2)Contractor submits response to RFP 5 days prior to RFP closing date/time.  It is received by the agency prior to closing/date and time.  The contractor confirms this fact.

3)Contractor realizes the next day that the response (offer) has  severe typos in it and submits a "proposal modification" by hand delivering to the agency designated place of receipt with no issues.  It is one time   It is therefore a "Proposal modification” that can be accepted by the agency with no questions asked as it delivered before the solicitation closing date and time.  

4)Contractor on further review determines even more typos occurred, puts together proposal modification No. 2 and delivers to agency on the closing date but after the stated time.  Clerk takes the proposal modification No. 2.

5)The following day the CO reviews  proposals/modifications received and finds that it is the only one was received but concludes that proposal modification No. 2 was late.   FAR 52.215-1/15.208 are reviewed and the CO determines that -

• The offer (proposal and its modifications 1 and 2) were received prior to award;
• It was the only proposal received
• CO determines acceptance of the offer with the late modification would not unduly delay award
• CO continues to review and award process

Now using the same example but changing it up at 5) as noted below to apply the OP's issue.....

5)a) 90+ days after the closing date and time for receipt of proposals the contractor submits the proposal modification No. 2

• The No. 2 is "late" as it was received after the exact time/date specified
• It is received prior to award 
• The CO determines receipt of No. 2 would not unduly delay award after all the CO is asking for an extension to proposal acceptance period
• In contradiction to the late is late rule at 15.208(b)(1), 15.208(b)(2) provides the "however" that the late modification may be considered when it is determined to be a modification to an otherwise successful proposal, that makes its terms more favorable to the Government giving the  CO the ability to consider the modification at any time it is received and may be accepted.

[C Culham]

33 minutes ago, Ibn Battuta said:

Yes.

 

34 minutes ago, Ibn Battuta said:

Is that a sentence? You write a lot of lines like that. Take deep breath. Slow down. We're not in a race. Think and write carefully. Edit your posts for comprehensibility.   Don't make irrational or poorly structured arguments.

Yes?  No you can not as exemplified by the very next response as provided above. 

35 minutes ago, Ibn Battuta said:

So what?

Because you said my writing had errors!  How can a direct quote from a GAO decision be an error?    Again as noted above you are not being specific to "errors"!

 

37 minutes ago, Ibn Battuta said:

You can stop right there

Oh okay you did not post a single thing about 15.001?   Really!  Specifically you posted in this thread 5 references to 15.001 so it is not just about 15.208(b)(2) it is about a full read of the FAR including solicitation provisions of FAR 15.  Isn't that what you wanted or am I mistaken? 

44 minutes ago, Ibn Battuta said:

Do you think you need a question mark at the end of that?

Oh probably to appease your intent to diminish the fact that you can not identify an "error" and most specifically an error in the examples I provided at the posts you have selectively picked to avoid the real fact that the examples I gave provide a sequence of exactly the decision points provided for in FAR 15.208 as supported by FAR 52.215-1 and FAR 15.001.

46 minutes ago, Ibn Battuta said:

you must be nuts to think I'd spend my time reading any more from you.

Nope, realist and do not ever imply that I am "nuts" again.  To so is offensive and implies a social bias on your part.   You did read and responded.  Quit avoiding your contention that I erred.  Disparaging remarks are simply the lack of facts to provide support to an argument.

 

48 minutes ago, Ibn Battuta said:

I have put you on my ignored user list.

LOL -  reminds me of playing gym basketball and one of my peers got a little perturbed and took his ball, the only ball we had and left.  My oh my I am back being a gym rat I guess.

50 minutes ago, Ibn Battuta said:

I've made my case. Each reader can reach their own conclusion.

Yep me too.   I hope the readers look at factual references of the FAR and the GAO, and not personal opines of Ibn Battuta that lack reference and substance of regulation.

Pleasant evening  sir!

[joel hoffman]

I’m sure that Cal has answers to his/her original questions. I think that the scenario is something like this. The government has already delayed award with one 45 day proposal extension period and has now asked for 20 more days. Cal has assigned some or all of the planned or proposed staff to other work and wouldn’t be able to start work immediately if awarded the contract for the new work.

Cal wanted to know, if they accept the 20 day extension, can they decline award without repercussions if they can’t mobilize/reassign the staff in time. Cal also asked whether they could obtain a debriefing to learn how to they can improve the proposals for future competitions.

The answers were no and maybe, depending upon the specific circumstances.

Another possible option was introduced, that being - if Cal can’t perform upon award as proposed, but wants to remain in the competition, Cal could accept the 20 day extension, then submit a modified proposal with  some alternate way of staffing  to meet the government’s requirements and required performance schedule. 

That’s where the discussion went down rabbit holes. Suffice it to say, that this alternative could be very risky.

The government CAN  only accept Cal’s late proposal modification and award if Cal’s firm is or will be the otherwise acceptable offeror based upon the current proposals - And if the late modification will be more advantageous to the government - And if the late modification doesn’t materially change the current solicitation/ RFP requirements.

Offering a later start date to accommodate Cal’s needs is a material change in the requirements. If the government was receptive to a later start date, then it would have to conduct discussions, amend the solicitation and allow those in the competitive range to submit revised proposals, thus further delaying award 

I doubt that the government would go that route. And it might decline to accept any late proposal modification from an otherwise successful offeror and award based upon Cal’s current proposal - which apparently isn’t possible for Cal to meet,

Thus, it appears that the scenario falls back to Cal’s original questions, which were answered  - no and maybe.

 

[joel hoffman]

Gosh no, Ibn. I don’t even remember what I said.

i no longer have practical access to the N&C Reports.