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Could we think of a way to improve the wording of our solicitations so that we can reduce the stress of accepting electronic proposals?

On Requests for Proposals (RFP), many of my coworkers are ?terrified? (maybe very cautious?) of allowing electronic submission of proposals because of

a. protest about late delivery, and

b. the matter of not opening proposals until after the solicitation closes.

c. (this concern is mine) The legality of an email as a contractually binding proposal.

The late issue comes into effect because of the problems in determining the location of emails at the time designated in FAR 15.208(b )(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?

As a new intern with less than a year contracting experience, still don?t see all the mines my more experienced buddies are trying to warn me about so, can we think of a way to improve the wording of our solicitations so that we can reduce the stress of accepting electronic proposals?

We usually use wording similar to the following:

1. A complete proposal is due no later than <time and date>. Proposals shall be submitted so that they will be received no later than the exact due time. The Government uses the atomic clock found at http://www.time.gov to determine the closing time of the solicitation. It is the responsibility of the offeror to ensure that its proposal reaches the <Agency> in a timely manner. A late proposal will not be accepted, except as set forth in FAR 15.208, and will be retained in the file unopened.

2. Proposals may be delivered by mail, special delivery, email, or in person. Facsimile (fax) submission of proposals is not acceptable.

3. Proposals delivered by email must arrive no later than <time and date> at either one of the following inboxes (we encourage including both mailboxes in the email):

a. Name1, <Name1@us.army.mil>, and/or

b. Name2, <Name2@us.army.mil>

4. Proposals sent through the United States Postal Service via Express Mail or Priority Mail may require additional days for delivery.

5. Include the solicitation number, closing date, and closing time on the outside of the sealed envelope.

7. If delivering in person or by mail, deliver to:

Agency

Attn: Name1

Address

City, XX Zip Code

8. The offeror is responsible to ensure that all parts of the proposal are submitted as requested. Failure to comply with the requirements of the solicitation may result in the rejection of the proposal.

9. It is the responsibility of the offeror to ensure that its proposal reaches <Agency> in a timely manner.

a. The offeror shall submit its proposal to be received by the Government no later than the date and time stated on Standard Form 1449 or applicable amendment(s) to the solicitation. Please note that the computer program used to generate the Standard Form 1449 does not allow completion of block 8 with the appropriate local time. Block 8 shall read as if completed with the following: <time and date>.

b. PROPOSAL ACCEPTANCE PERIOD. The offeror agrees to hold the prices in its proposal firm for XX days from the date specified for receipt of proposals or, if requested, from the data specified for receipt of final proposal revisions.

Thanks in advance for your input.

Dan

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Thanks in advance for your input.

Dan

The timely receipt of proposals and quotes has become more worrisome with the introduction of e-mail as a medium for delivery. Regardless of the words you choose, the best way to avoid a problem is to check the e-mail box or the snail mail address about 30 minutes prior to the due time. If you do not have want you need or want, extend the due date and or time.

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Guest Vern Edwards

What says you cannot open proposals (responses to an RFP) before the solicitation closes?

What's the issue about the legality of an email as a "contractually binding" proposal?

In what sense is any proposal ever "contractually binding"? A proposal is a proposal, not a contract.

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Could we think of a way to improve the wording of our solicitations so that we can reduce the stress of accepting electronic proposals?

While the FAR coverage of proposal submission is not a paradigm of clarity, it is sufficiently clear. I would be reluctant to fiddle with the language in the FAR provisions. In my earlier post, I recommended that you avoid the problem by carefully monitoring the status of proposal receipts. I believe an ounce of prevention is worth a pound of tailoring of FAR provisions.

The FAR provisions set out the contractor's obligations to make timely submissions and describe the outcomes if a proposal, modification or revision is received late. While the paragraph numbering of the provisions differs between the 2 provisions, FAR 52.212-1 and FAR 52.215-1 say the same thing:

Quote

52.215-1 -- Instructions to Offerors -- Competitive Acquisition.

? (3) Submission, modification, revision, and withdrawal of proposals.

(i) Offerors are responsible for submitting proposals, and any modification, or revisions, so as to reach the Government office designated in the solicitation by the time specified in the solicitation. If no time is specified in the solicitation, the time for receipt is 4:30 p.m., local time, for the designated Government office on the date that proposal or revision is due.

(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

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

(3) It is the only proposal received.

(B) 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.

(iii) Acceptable evidence to establish the time of receipt at the Government installation includes the time/date stamp of that installation on the proposal wrapper, other documentary evidence of receipt maintained by the installation, or oral testimony or statements of Government personnel.

(iv) If an emergency or unanticipated event interrupts normal Government processes so that proposals cannot be received at the office designated for receipt of proposals by the exact time specified in the solicitation, and urgent Government requirements preclude amendment of the solicitation, the time specified for receipt of proposals will be deemed to be extended to the same time of day specified in the solicitation on the first work day on which normal Government processes resume.

Unquote.

As the words in the provisions have been interpreted by the GAO, I would not tailor them.

Since your biggest problem is the delivery and disposition of e-mails, when you are authorizing e-mail submissions, I suppose it would do no harm if you inserted the following words in a cover letter with the solicitation or in your request for revised proposals:

"You are authorized to use e-mails for submission of your proposal (or quotation or revision). If you choose to do so, please be advised that your proposal (or quotation or revision) must reach my e-mail box by the following exact date and time ______________. If it is received after that exact date and time, I can not consider it unless 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 ______________________."

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What says you cannot open proposals (responses to an RFP) before the solicitation closes?

What's the issue about the legality of an email as a "contractually binding" proposal?

In what sense is any proposal ever "contractually binding"? A proposal is a proposal, not a contract.

Vern, in regards to opening proposals before the solicitation closes, I know the FAR does not necessarily state explicit verbiage on this (this may only apply to FAR 14, IFB as stated under 14.401). However, proposal may contain proprietary information, which as we all know sometimes contractors do provide even though we, the Government, may not ask for. If lets say we did open a proposal before closing. What reason(s) do we provide to a contractor if he/she decides to recall their proposal back (and they have the right to) after we had opened their proposal before closings? How then can we justify that we did not jeopardize their proposal?

Another scenario... If two contractors - contractor A submits their proposal early and contractor B procrastinated to the last minute. We evaluated both proposals and deemed that contractor A was the most qualified (assuming both contractors were almost equally qualified). Who?s to say that contractor B would protest for reasons that you gave more time to evaluate contractor A's proposal, which may have been a subjective decision?

Please address.

Respectfully,

John

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What says you cannot open proposals (responses to an RFP) before the solicitation closes?

What's the issue about the legality of an email as a "contractually binding" proposal?

In what sense is any proposal ever "contractually binding"? A proposal is a proposal, not a contract.

Thanks for your questions,

What says you cannot open proposals (responses to an RFP) before the solicitation closes?

- 15.208(g) Late proposals and modifications that are not considered must be held unopened, unless opened for identification, until after award and then retained with other unsuccessful proposals.

What's the issue about the legality of an email as a "contractually binding" proposal?

- A contract is formed when the Government communicates acceptance of the offer to the offeror. The issue I?m referring to is proving that the email, in fact, came from the offeror. So, for example, if I receive an email offer from ABC Inc. and later ABC denies that the email came from a person with authority to make the commitment.

In what sense is any proposal ever "contractually binding"? A proposal is a proposal, not a contract.

- Yes, a proposal is not a contract until it?s accepted but is enforceable after closing time and before the period of acceptance expires. Right?

Dan

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Dan, are you talking about using e-mail as a way of transmitting proposals (e.g., scanned documents), or something more elaborate (e.g., electronic signatures under FAR Subpart 4.5)? If the later, make sure you follow your agency's implementation. See FAR 4.502(B)(1) (calling for uniformity in implementing electronic commerce).

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Guest Vern Edwards
Thanks for your questions,

What says you cannot open proposals (responses to an RFP) before the solicitation closes?

- 15.208(g) Late proposals and modifications that are not considered must be held unopened, unless opened for identification, until after award and then retained with other unsuccessful proposals.

What's the issue about the legality of an email as a "contractually binding" proposal?

- A contract is formed when the Government communicates acceptance of the offer to the offeror. The issue I?m referring to is proving that the email, in fact, came from the offeror. So, for example, if I receive an email offer from ABC Inc. and later ABC denies that the email came from a person with authority to make the commitment.

In what sense is any proposal ever "contractually binding"? A proposal is a proposal, not a contract.

- Yes, a proposal is not a contract until it?s accepted but is enforceable after closing time and before the period of acceptance expires. Right?

Dan

I didn't realize you were talking about late proposals. In any case, why should a late emailed proposal cause you any stress? The rules about late emailed proposals are simpler than they are for any other kind of late proposal: a late emailed proposal that wasn't received at the initial point of entry to the government's infrastructure by 5pm the day before the deadline for submission cannot be considered. Period. End of story.

There is no such thing as a "contractually binding" proposal. Proposals are not binding. An offeror may withdraw its proposal in writing at any time prior to acceptance (award), even if the acceptance period has not expired. See FAR 15.208(e) and 52.215-1( c)(3)(iv). Withdrawal can be done by email (which the CO should confirm). Whether a proposal was withdrawn before acceptance is a matter of fact that can be established by evidence. Same with regard to authority to commit the offeror. No big deal. If you get an email proposal and you have any doubt that it was submitted by the offeror, call the offeror and ask for confirmation. In any case, a CO should never accept a proposal, even when awarding without discussions, before talking to the offeror's representative to confirm that the proposal has not been withdrawn.

I don't see any reason to be stressed. Have a drink. Relax.

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I didn't realize you were talking about late proposals. In any case, why should a late emailed proposal cause you any stress? The rules about late emailed proposals are simpler than they are for any other kind of late proposal: a late emailed proposal that wasn't received at the initial point of entry to the government's infrastructure by 5pm the day before the deadline for submission cannot be considered. Period. End of story.

There is no such thing as a "contractually binding" proposal. Proposals are not binding. An offeror may withdraw its proposal in writing at any time prior to acceptance (award), even if the acceptance period has not expired. See FAR 15.208(e) and 52.215-1( c)(3)(iv). Withdrawal can be done by email (which the CO should confirm). Whether a proposal was withdrawn before acceptance is a matter of fact that can be established by evidence. Same with regard to authority to commit the offeror. No big deal. If you get an email proposal and you have any doubt that it was submitted by the offeror, call the offeror and ask for confirmation. In any case, a CO should never accept a proposal, even when awarding without discussions, before talking to the offeror's representative to confirm that the proposal has not been withdrawn.

I don't see any reason to be stressed. Have a drink. Relax.

:D Thanks! I just learned there was a history of IT personnel requesting that our lawyer talked to their lawyer before releasing any information on the email tracking but our boss' boss talked to their boss' boss and now we are all singing kumbaya together.

Dan

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Dan, are you talking about using e-mail as a way of transmitting proposals (e.g., scanned documents), or something more elaborate (e.g., electronic signatures under FAR Subpart 4.5)? If the later, make sure you follow your agency's implementation. See FAR 4.502(:D(1) (calling for uniformity in implementing electronic commerce).

Thanks. I was talking about problems verifying email arrival time but it was a communication problem that just got fixed thanks to some ?newbie who did not know why he should not accept email proposals?.

Now there is the issue of electronic signatures. ARGH!!! Our agency recently started (about a week) using ?approveit? but the documents shows as ?The document has been modified? when more than one person signs it.

What is the rest of the world using to sign electronic documents? And how is it working for you?

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