Jump to content
The Wifcon Forums and Blogs
here_2_help

KC-X Tanker Competion via Sealed-Bid?

Recommended Posts

?The proposal was late and by law we are not allowed to consider it,? Morrell said in response to a query from AVIATION WEEK. ?We are considering two proposals and U.S. Aerospace is not one of those being considered.?

Apparently the bid was received 5 minutes late. Apparently the US Air Force does not read the FAR at 15.208(B), which permits consideration of late proposals. Now they have their first protest -- of this round.

Here's a link to the story.

http://pogo.ly/8dzziX

My question is whether other 1102's would have accepted the late proposal for evaluation, or done what the USAF C.O. did and refuse to consider it?

Share this post


Link to post
Share on other sites

Which exemption would you claim under 15.208(B)?

It is an offeror's responsibility to deliver its proposal to the proper place at the proper time, and late delivery generally requires rejection of the proposal. Integrated Support Sys. inc, B-283137.2, Sept. 10, 1999, 99-2 CPD para. 51 at 2. However, a hand-carried proposal that arrives late may be considered if improper government action was the paramount cause for the late submission, and where consideration of the proposal would not compromise the integrity of the competitive process; improper government action in this context is affirmative action that makes it impossible for the offeror to deliver the proposal on time. Id. Nonetheless, even in cases where the late receipt may have been caused, in part, by erroneous government action, a late proposal should not be considered if the offeror significantly contributed to the late receipt by not acting reasonably in fulfilling its responsibility to deliver a hand-carried proposal to the proper place by the proper time. See O.S. Sys., Inc., B 292827, Nov. 17, 2003, 2003 CPD para. 211 at 3.

ALJUCAR, LLC, B-401148, June 8, 2009

Share this post


Link to post
Share on other sites
Which exemption would you claim under 15.208(B)?

Good reply. My thought was that the Government could accept the late bid when it was in their interest to do so. I see that it must have been in the government's control in order to be entertained. According to the article, the proposal was delivered to the installation on time, but not to the exact building. The protester appears to be arguing that it was late because of governmental action -- i.e., misdirection as to how to find the right building.

Thanks

H2H

Share this post


Link to post
Share on other sites
My question is whether other 1102's would have accepted the late proposal for evaluation, or done what the USAF C.O. did and refuse to consider it?

Since I do not know all the facts, I make assumptions. Based upon assumptions, I believe the contracting officer cannot consider the late proposal of U.S. Aerospace. I also believe that either the contractor or contracting officer could have taken steps to avoid the late proposal.

The answer depends upon the application of the facts to the rule set out in the FAR. Bremen has identified the source of the rule regarding proposals that arrive after the due date and time: FAR 15.208. It also appears in FAR 52.215-1 at paragraph©(3).

Paragraph (B) of FAR 15.208 contains several elements:

Quote

(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" and will not be considered unless it is received before award is made, the contracting officer determines that accepting the late proposal would not unduly delay the acquisition ; and--

(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; or

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

(iii) It was the only proposal received.

Unquote

The only facts we have are contained in the report contained in the link you provided. The report stated that

Quote

According to an industry executive, a messenger carrying a bid from U.S. Aerospace arrived at the Wright-Patterson gate at about 1:30 p.m., 30 minutes before the deadline. "Air Force personnel intentionally denied the messenger entry to the base? and later provided ?incorrect directions", and forced the messenger to wait when he got turned around. The proposal was marked 2:05 p.m., but this executive says that the bid was under Air Force control prior to that time

Unquote

In reviewing the facts, we know that the proposal was marked 2:05 p.m., 5 minutes after the exact time specified for receipt of proposals. If there is such evidence that it was "at the Government installation designated for receipt of proposals and was under the Government's control" prior to 2:00 p.m., then the contracting officer must consider it as the proposal is not late.

If the proposal arrived after 2:00 p.m., then we must apply the elements of the rule set out in FAR 15.208 (B) to determine if we may consider it.

We know that the U.S. Aerospace proposal was received prior to award of the tanker contract. We are probably safe to conclude that acceptance of the U.S. Aerospace proposal would not unduly delay the acquisition.

We also know that the U.S. Aerospace proposal was not the only one received, and we can safely assume that e-commerce transmission was not permitted and that U.S. Aerospace did not submit the proposal electronically as well as via messenger. That leaves only paragraph (1) (ii) as a possible basis for considering the late U.S. Aerospace proposal.

The "industry executive" asserts that the actions or inactions of Air Force personnel prevented the messenger from reaching the proposal delivery location by 2:00 p.m.

The GAO has issued a number of decisions addressing the circumstance of a late hand carried proposal. The GAO position is summarized well in the Integrated Support Systems Inc decision:

Quote

However, a hand-carried proposal that arrives late may be considered if improper government action was the paramount cause for the late submission, and where consideration of the proposal would not compromise the integrity of the competitive process. Caddell Constr. Co., Inc., B-280405, Aug. 24, 1998, 98-2 CPD Para. 50 at 6. Improper government action in this context is affirmative action that makes it impossible for the offeror to deliver the proposal on time. Id. Even in cases where the late receipt may have been caused, in part, by erroneous government action, a late proposal should not be considered if the offeror significantly contributed to the late receipt by not acting reasonably in fulfilling its responsibility to deliver a hand-carried proposal to the proper place by the proper time. Id.; Adirondack Constr. Corp., B-280015.2, Aug. 25, 1998, 98-2 CPD Para. 55 at 6.

Unquote

Integrated Support Sys. inc, B-283137.2, Sept. 10, 1999, 99-2 CPD para. 51 at 2.

Since I do not know the layout of Wright Patterson, the distance from the security gate to the contracting office, or the actual behavior of the security guards, I can only speculate as to whether or not the contracting officer must consider the late proposal.

I have had many experiences arriving at many military bases and dealing with numerous security guards. Based upon my experience, I believe that 30 minutes was not sufficient time to get on base and to the contracting office. In other words, I believe that "... the offeror significantly contributed to the late receipt by not acting reasonably in fulfilling its responsibility to deliver a hand-carried proposal to the proper place by the proper time." I also believe that the security guards did not intentionally deny the messenger entry to the base, and later provide "incorrect directions". See B-401148, ALJUCAR, LLC, June 8, 2009.

These are my speculations as I do not know the facts.

However, I do know that the contractor could have avoided this circumstance by not waiting until the last moment to deliver its proposal. I also know that the contracting officer could have avoided this circumstance by checking the proposal depository at 1:45 p.m. to determine if all likely proposals were received. If the contracting officer was expecting 3 proposals, but only saw 2, he or she could have extended the due time or date to allow timely receipt of the third proposal.

Share this post


Link to post
Share on other sites
Guest Vern Edwards

Anyone of any intelligence should know that it can easily take 30 minutes to get through Pass and ID at an Air Force Base. (At Pearl Harbor Naval Base it can take two hours.) It is beyond stupid to arrive at the gate of WPAFB, of all places, 30 minutes before the deadline and expect to get through in time. Moreover, in what way was the proposal under the government's control?

Share this post


Link to post
Share on other sites
Since I do not know all the facts, I make assumptions. Based upon assumptions, I believe the contracting officer cannot consider the late proposal of U.S. Aerospace. I also believe that either the contractor or contracting officer could have taken steps to avoid the late proposal.

The answer depends upon the application of the facts to the rule set out in the FAR. Bremen has identified the source of the rule regarding proposals that arrive after the due date and time: FAR 15.208. It also appears in FAR 52.215-1 at paragraph?(3).

Paragraph (:) of FAR 15.208 contains several elements:

Quote

(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" and will not be considered unless it is received before award is made, the contracting officer determines that accepting the late proposal would not unduly delay the acquisition ; and--

(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; or

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

(iii) It was the only proposal received.

Unquote

The only facts we have are contained in the report contained in the link you provided. The report stated that

Quote

According to an industry executive, a messenger carrying a bid from U.S. Aerospace arrived at the Wright-Patterson gate at about 1:30 p.m., 30 minutes before the deadline. "Air Force personnel intentionally denied the messenger entry to the base? and later provided ?incorrect directions", and forced the messenger to wait when he got turned around. The proposal was marked 2:05 p.m., but this executive says that the bid was under Air Force control prior to that time

Unquote

In reviewing the facts, we know that the proposal was marked 2:05 p.m., 5 minutes after the exact time specified for receipt of proposals. If there is such evidence that it was "at the Government installation designated for receipt of proposals and was under the Government's control" prior to 2:00 p.m., then the contracting officer must consider it as the proposal is not late.

If the proposal arrived after 2:00 p.m., then we must apply the elements of the rule set out in FAR 15.208 (:) to determine if we may consider it.

We know that the U.S. Aerospace proposal was received prior to award of the tanker contract. We are probably safe to conclude that acceptance of the U.S. Aerospace proposal would not unduly delay the acquisition.

We also know that the U.S. Aerospace proposal was not the only one received, and we can safely assume that e-commerce transmission was not permitted and that U.S. Aerospace did not submit the proposal electronically as well as via messenger. That leaves only paragraph (1) (ii) as a possible basis for considering the late U.S. Aerospace proposal.

The "industry executive" asserts that the actions or inactions of Air Force personnel prevented the messenger from reaching the proposal delivery location by 2:00 p.m.

The GAO has issued a number of decisions addressing the circumstance of a late hand carried proposal. The GAO position is summarized well in the Integrated Support Systems Inc decision:

Quote

However, a hand-carried proposal that arrives late may be considered if improper government action was the paramount cause for the late submission, and where consideration of the proposal would not compromise the integrity of the competitive process. Caddell Constr. Co., Inc., B-280405, Aug. 24, 1998, 98-2 CPD Para. 50 at 6. Improper government action in this context is affirmative action that makes it impossible for the offeror to deliver the proposal on time. Id. Even in cases where the late receipt may have been caused, in part, by erroneous government action, a late proposal should not be considered if the offeror significantly contributed to the late receipt by not acting reasonably in fulfilling its responsibility to deliver a hand-carried proposal to the proper place by the proper time. Id.; Adirondack Constr. Corp., B-280015.2, Aug. 25, 1998, 98-2 CPD Para. 55 at 6.

Unquote

Integrated Support Sys. inc, B-283137.2, Sept. 10, 1999, 99-2 CPD para. 51 at 2.

Since I do not know the layout of Wright Patterson, the distance from the security gate to the contracting office, or the actual behavior of the security guards, I can only speculate as to whether or not the contracting officer must consider the late proposal.

I have had many experiences arriving at many military bases and dealing with numerous security guards. Based upon my experience, I believe that 30 minutes was not sufficient time to get on base and to the contracting office. In other words, I believe that "... the offeror significantly contributed to the late receipt by not acting reasonably in fulfilling its responsibility to deliver a hand-carried proposal to the proper place by the proper time." I also believe that the security guards did not intentionally deny the messenger entry to the base, and later provide "incorrect directions". See B-401148, ALJUCAR, LLC, June 8, 2009.

These are my speculations as I do not know the facts.

However, I do know that the contractor could have avoided this circumstance by not waiting until the last moment to deliver its proposal. I also know that the contracting officer could have avoided this circumstance by checking the proposal depository at 1:45 p.m. to determine if all likely proposals were received. If the contracting officer was expecting 3 proposals, but only saw 2, he or she could have extended the due time or date to allow timely receipt of the third proposal.

Share this post


Link to post
Share on other sites

Quote

According to an industry executive, a messenger carrying a bid from U.S. Aerospace arrived at the Wright-Patterson gate at about 1:30 p.m., 30 minutes before the deadline. "Air Force personnel intentionally denied the messenger entry to the base? and later provided ?incorrect directions", and forced the messenger to wait when he got turned around. The proposal was marked 2:05 p.m., but this executive says that the bid was under Air Force control prior to that time

Unquote

It is just a smoke screen. All personnel are "denied" entry, they have to be permitted access to the base. It would have to be a big conspiracy for the guards to target one; of how many people trying to access the base at that time. If I was standing in line for a pass, I would have told him to wait his turn.

Share this post


Link to post
Share on other sites

The protestor thinks they can successfully perform a $35 billion contract for 100+ aircraft but can't get the bid in on time! Something is wrong.

Share this post


Link to post
Share on other sites

.

Former Fed nails this one.

If I'm the CO, I sure don't want to deal with a bunch of amateurs, and that's what this contractor looks like, sending their proposal too late to be assured that it will be delivered on time.

I have been involved on the Government side with an acquisition valued at around $130 - 150 Million, that drew nearly a dozen offers. Every one of them had a company official carry their proposal in by hand at least an hour before the closing time. We were on the Denver Federal Center, with moderate security. Members of the proposal teams met for breakfast, congratulated themselves on getting a responsive proposal done on time and on budget, and then one or more of them walked it over. Actually, each offeror wheeled in several boxes with multiple copies of multiple volumes.

My guess, this offeror was late because, although they had their proposal written in plenty of time, they failed to factor in the time to print and bind the copies. They should have turned it in lacking the required number of copies, even without binders, rather than disqualifying themselves by being late.

Truthfully, one competent Business Development Manager, at about $120 K per year, would have prevented this. Who wants to administer a multi-billion dollar contract with an entity that can't be bothered to hire one competent contracting professional ?

.

Share this post


Link to post
Share on other sites

I completely agree with Brian, Former Fed and Vern on this subject! I have seen a number of contractor literally sit in the parking lot and look at their watch so they could deliver their proposal or sealed bid at EXACTLY the last minute. Why?

I have been told it's so they could see who else was proposing, but they could have done so AFTER they submitted their own package. It makes no sense whatsoever to risk being late by such behavior! I believe that in the case of a contractor who ran up 5 min. late for a $20M solicitation, and even more so in the case of a $35B opportunity.

As a person who has been on the contractor side of the negotiating table, I personally ensured that the proposal packages I was responsible for were delivered at least 12 hours before the cut off time, depending upon the means of delivery. When packages had to be delivered by hand, I made that 24 hours in advance, and I also made a dry run prior to actually delivering the package to ensure that I was prepared for the traffic, construction, security and knew the directions to the correct office.

If I could do that as a $70K Senior Contract Administrator, why can't a $120K Proposal Team Leader not do the same?

Share this post


Link to post
Share on other sites

At our old building, there was a deli on the first floor and folks would drop off their proposals and then go get coffee and sit at table where they could see door to building and watch for folks bringing boxes. Since we do a lot of Oral presentations and tend to start them one or two days following proposal due date, you'd occasionally see someone not from building hanging out in cafeteria on the four or five days following proposal due dates. They were watching to figure out who and how many had proposed. But when I was with Industry, plan was always to drop off at least an hour before time due. Boss never wanted to be first - he wanted to see if other boxes were already there. :lol:

Share this post


Link to post
Share on other sites

Given the antiquated rules governing the submission of proposals, it was stupid for the offeror to wait as long as they did to submit their offer. However, it's questionable to conclude that an offeror's ability to submit a proposal on time is indicative of their ability to build airplanes.

Share this post


Link to post
Share on other sites
Given the antiquated rules governing the submission of proposals, it was stupid for the offeror to wait as long as they did to submit their offer. However, it's questionable to conclude that an offeror's ability to submit a proposal on time is indicative of their ability to build airplanes.

http://ebird.osd.mil/ebfiles/e20100918776375.html

GAO Dismisses Claims Against Air Force

The Government Accountability Office has dismissed claims, filed in the Air Force's aerial tanker competition, that the Air Force intentionally misbehaved in eliminating a proposal.

In August, less than a month after bids were due, dark-horse competitor U.S. Aerospace, a Los Angeles-based contractor, filed a protest with the GAO because the Air Force had rejected its submission for being late.

In its proposal, the company said the components would be built by Ukrainian firm Antonov but the planes would be assembled in the United States.

U.S. Aerospace alleged in its protest that the Air Force had deliberately left its delivery person waiting just long enough to miss the deadline.

In a ruling issued Sept. 16, the GAO dismissed the claim, finding "insufficient support" for the allegations. The ruling rejects the claim that the Air Force conspired to prevent the firm from submitting the proposal on time, noting that it was U.S. Aerospace's decision to show up less than an hour before proposals were due and to fail to confirm the exact location where proposals were accepted.

However, the GAO will consider other claims, including whether the proposal was in fact received on time. The agency is set to make its final ruling by Oct. 6.

In a statement, U.S. Aerospace said that it was pleased by the ruling and by the GAO's decision to continue to consider other parts of the protest.

The $35 billion tanker deal remains one of the largest and most hotly contested Defense Department acquisition programs.

The Air Force planned to lease tankers from Boeing in 2003, but the deal ended the next year because of a procurement scandal that sent a Boeing executive and a Pentagon official to jail.

In 2008, the Air Force awarded the contract to Northrop Grumman, which had partnered with European Aeronautic Defense and Space's Airbus, but the decision was overturned after the GAO upheld a protest filed by Boeing.

The Pentagon relaunched the program last fall, but Northrop opted not to bid and EADS announced that it would compete on its own. Both Boeing and EADS submitted proposals in the new competition.

--Marjorie Censer, Capital Business

Share this post


Link to post
Share on other sites
http://ebird.osd.mil/ebfiles/e20100918776375.html

In a ruling issued Sept. 16, the GAO dismissed the claim, finding "insufficient support" for the allegations. The ruling rejects the claim that the Air Force conspired to prevent the firm from submitting the proposal on time, noting that it was U.S. Aerospace's decision to show up less than an hour before proposals were due and to fail to confirm the exact location where proposals were accepted.

However, the GAO will consider other claims, including whether the proposal was in fact received on time. The agency is set to make its final ruling by Oct. 6.

It's misleading to say that ALL claims have been dismissed by the GAO.

Share this post


Link to post
Share on other sites
Guest
This topic is now closed to further replies.

×
×
  • Create New...