B-173137, SEP 8, 1971, 51 COMP GEN 149

B-173137: Sep 8, 1971

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WAS IN ACCORDANCE WITH THE PROVISION IN EACH AMENDMENT THAT UNCHANGED TERMS AND CONDITIONS REMAINED IN FULL FORCE AND EFFECT. CHECKING IN BOTH AMENDMENTS THE BLOCK "THE HOUR AND DATE SPECIFIED FOR RECEIPT OF OFFERS IS EXTENDED" RATHER THAN THE "IS NOT INTENDED" BLOCK. CONSIDERING THE TIME WAS SPECIFICALLY MENTIONED IN AMENDMENT NO. 1. WHILE ONLY THE DATE WAS CHANGED IN AMENDMENT NO. 2. CONTRACTS - NEGOTIATION - LATE PROPOSALS AND QUOTATIONS - ACCEPTANCE IN GOVERNMENT'S INTEREST ALTHOUGH PARAGRAPH 3-506 OF THE ARMED SERVICES PROCUREMENT REGULATION (ASPR) REQUIRES REQUESTS FOR PROPOSALS NOTIFY OFFERORS THAT LATE PROPOSALS OR MODIFICATION TO PROPOSALS RECEIVED AFTER THE DATE FOR SUBMISSION WILL NOT BE CONSIDERED.

B-173137, SEP 8, 1971, 51 COMP GEN 149

CONTRACTS - NEGOTIATION - REQUEST FOR PROPOSALS - SUBMISSION DATE - EXTENSION THE REJECTION PURSUANT TO PARAGRAPH 3-506 OF THE ARMED SERVICES PROCUREMENT REGULATION OF A HAND-CARRIED LATE PROPOSAL RECEIVED AT 1320 HOURS, OR 20 MINUTES SUBSEQUENT TO THE CLOSING HOUR SPECIFIED IN THE REQUEST FOR PROPOSALS TO MAINTAIN REAL PROPERTY IN KOREA, WHICH HAD BEEN EXTENDED TWICE, THE FIRST AMENDMENT ADVANCING THE INITIAL CLOSING HOUR FROM 1500 TO 1300 HOURS AND THE SECOND ONE INDICATING A CHANGE IN THE OPENING DATE ONLY, WAS IN ACCORDANCE WITH THE PROVISION IN EACH AMENDMENT THAT UNCHANGED TERMS AND CONDITIONS REMAINED IN FULL FORCE AND EFFECT. FURTHERMORE, CHECKING IN BOTH AMENDMENTS THE BLOCK "THE HOUR AND DATE SPECIFIED FOR RECEIPT OF OFFERS IS EXTENDED" RATHER THAN THE "IS NOT INTENDED" BLOCK, WHERE ONLY ONE OF THE BLOCKS COULD BE CHECKED, CREATED NO AMBIGUITY, CONSIDERING THE TIME WAS SPECIFICALLY MENTIONED IN AMENDMENT NO. 1, WHILE ONLY THE DATE WAS CHANGED IN AMENDMENT NO. 2. CONTRACTS - NEGOTIATION - LATE PROPOSALS AND QUOTATIONS - ACCEPTANCE IN GOVERNMENT'S INTEREST ALTHOUGH PARAGRAPH 3-506 OF THE ARMED SERVICES PROCUREMENT REGULATION (ASPR) REQUIRES REQUESTS FOR PROPOSALS NOTIFY OFFERORS THAT LATE PROPOSALS OR MODIFICATION TO PROPOSALS RECEIVED AFTER THE DATE FOR SUBMISSION WILL NOT BE CONSIDERED, IN VIEW OF ASPR 3-506(C)(II), WHICH PROVIDES FOR CONSIDERATION OF A LATE PROPOSAL WHEN THE SECRETARY OF THE DEPARTMENT DETERMINES IT IS OF "EXTREME IMPORTANCE TO THE GOVERNMENT, AS FOR EXAMPLE WHERE IT OFFERS SOME IMPORTANT TECHNICAL OR SCIENTIFIC BREAKTHROUGH," LATE PROPOSALS ARE AUTHORIZED TO BE OPENED IN ORDER TO DETERMINE THE APPLICABILITY OF THE EXCEPTION. HOWEVER, WHERE A PROMPT AWARD WAS NECESSARY, THE FAILURE TO OPEN A LATE PROPOSAL TO DETERMINE IF THE PROPOSAL WARRANTED AN EXCEPTION TO THE REQUIREMENT THAT LATE PROPOSALS MAY NOT BE CONSIDERED DOES NOT JUSTIFY DISTURBING THE AWARD.

TO WACO ENGINEERS AND ASSOCIATES AND POONG CHUN PRODUCTS CO., LTD., SEPTEMBER 8, 1971:

WE REFER TO YOUR LETTER DATED MAY 26, 1971, WITH ENCLOSURES, PROTESTING AGAINST THE CONTRACTING OFFICER'S REJECTION OF YOUR PROPOSAL SUBMITTED IN RESPONSE TO REQUEST FOR PROPOSALS (RFP) NO. DAJB03-71-R 6128, ISSUED BY THE UNITED STATES ARMY KOREA PROCUREMENT AGENCY.

THE SUBJECT RFP WAS ISSUED ON APRIL 9, 1971, FOR THE MANAGEMENT, OPERATION, MAINTENANCE, AND REPAIR OF REAL PROPERTY FACILITIES IN THE NORTHERN SECTOR OF KOREA. THE CLOSING DATE ON THE RFP WAS SET FOR 1500 HOURS ON APRIL 23, 1971. PURSUANT TO AMENDMENT NO. 1 ISSUED APRIL 9, THE CLOSING DATE WAS EXTENDED TO APRIL 26 AND THE TIME CHANGED TO 1300 HOURS. AMENDMENT NO. 2 DATED APRIL 16, 1971, FURTHER EXTENDED THE OPENING DATE TO MAY 3, 1971; A FINAL AMENDMENT WAS ISSUED ON APRIL 26, WHICH INCLUDED NO CHANGES IN REGARD TO OPENING DATE OR TIME. YOUR PROPOSAL WAS HAND- DELIVERED TO THE PROCUREMENT ACTIVITY AT 1320 HOURS, ON MAY 3, 1971. MAY 4, YOU WERE NOTIFIED THAT PURSUANT TO ARMED SERVICES PROCUREMENT REGULATION (ASPR) 3-506 YOUR PROPOSAL WAS DETERMINED TO BE LATE AND WOULD NOT BE CONSIDERED FOR AWARD.

YOU CONTEND THAT THE CONTRACTING OFFICER'S DETERMINATION WAS ERRONEOUS BECAUSE THE TIME SET FOR CLOSING WAS EITHER 1500 HOURS AS SPECIFIED IN THE INITIAL RFP OR ANY TIME UP TO 2400 HOURS ON MAY 3, 1971. THE ACTIVITY, ON THE OTHER HAND, CONTENDS THAT THE PROPER OPENING TIME WAS 1300 HOURS.

RESOLUTION OF THE ISSUE REQUIRES A CAREFUL EXAMINATION OF THE RFP (DD FORM 1665, JUNE 1, 1966), AND THE AMENDMENTS (ALL ON GSA STANDARD FORM 30). THE RFP IN ITS ORIGINAL FORM PROVIDES IN BLOCK #8 THAT OFFERS WILL BE ACCEPTED UNTIL 1500 HOURS ON APRIL 23, 1971. AMENDMENT NO. 1 PROVIDES IN BLOCK #12, ENTITLED "DESCRIPTION OF AMENDMENT," AT ITEM C: "DD FORM 1665, BLOCK 8 CHANGE THE TIME AND DATE TO READ 1300 HOURS, 26 APRIL 1971." LATER, AMENDMENT NO. 2 WAS ISSUED WHICH PROVIDES, ALSO IN BLOCK #12, AT ITEM A: "DD FORM 1665, BLOCK 8 CHANGE THE DATE TO READ 3 MAY 1971." ON BOTH AMENDMENT FORMS AT BLOCK #9 THE FOLLOWING PROVISION APPEARS, CHECKED AS FOLLOWS:

*** THE HOUR AND DATE SPECIFIED FOR RECEIPT OF OFFERS (X) IS EXTENDED, IS NOT EXTENDED.

EACH AMENDMENT FORM ALSO CONTAINS THE FOLLOWING PROVISION IN BLOCK #12:

EXCEPT AS PROVIDED HEREIN, ALL TERMS AND CONDITIONS OF THE DOCUMENT REFERENCED IN BLOCK 8, AS HERETOFORE CHANGED, REMAIN UNCHANGED AND IN FULL FORCE AND EFFECT.

BLOCK #8 REFERENCES THE ORIGINAL RFP. THE ISSUE TO BE DECIDED HERE IS WHETHER THE SECOND AMENDMENT CHANGED THE OPENING TIME ESTABLISHED BY THE FIRST AMENDMENT.

IT APPEARS FROM AN EXAMINATION OF THE RFP AND THE TWO PERTINENT AMENDMENTS THERETO THAT THE TIME FOR SUBMISSION OF PROPOSALS WAS TO BE MAY 3, 1971, AT 1300 HOURS. THE CITED PROVISION IN BLOCK #12 OF BOTH AMENDMENTS CLEARLY PROVIDES THAT UNLESS THAT PARTICULAR AMENDMENT MAKES A CHANGE IN THE RFP OR IN AN EARLIER AMENDMENT, ALL THE TERMS OF THE RFP AS MODIFIED BY PRIOR AMENDMENTS REMAIN IN EFFECT. THUS, IT IS CLEAR THAT ALL EARLIER AMENDMENTS REMAIN EFFECTIVE UNLESS SPECIFICALLY CHANGED BY A LATER AMENDMENT. ACCORDINGLY, SINCE BLOCK #12 OF AMENDMENT NO. 1 CHANGED BOTH THE DATE AND TIME FOR OPENING AND BLOCK #12 OF AMENDMENT NO. 2 CHANGED ONLY THE OPENING DATE, THE TIME ESTABLISHED BY AMENDMENT NO. 1, 1300 HOURS, WAS THE EFFECTIVE CLOSING TIME.

ALTHOUGH IT IS TRUE THAT ON BOTH AMENDMENTS THE BOX IN ITEM NO. 9 IS CHECKED TO SPECIFY THAT THE HOUR AND DATE FOR RECEIPT OF OFFERS IS EXTENDED, WE DO NOT FEEL THIS FACTOR CREATES ANY AMBIGUITY AS TO THE INTENDED OPENING TIME REQUIRED BY AMENDMENT NO. 2. SINCE THE PROVISION CONTAINS ONLY TWO BOXES, ONE OF WHICH IS TO BE CHECKED IF THE HOUR AND DATE IS EXTENDED, THE OTHER IF THE OPENING OF OFFERS IS NOT TO BE EXTENDED, WE FEEL THE INTENT OF AMENDMENT NO. 2 NOT TO ALTER THE OPENING TIME IS CLEAR IN VIEW OF THE FACT THAT THE TIME WAS SPECIFICALLY MENTIONED AS A CHANGED ITEM IN BLOCK #12 OF AMENDMENT NO. 1, WHILE ONLY THE DATE WAS LISTED AS A CHANGED ITEM IN BLOCK #12 OF AMENDMENT NO. 2. IT SHOULD HAVE BEEN EVIDENT FROM THE SERIES OF DOCUMENTS RECEIVED THAT BOX #9 IS MERELY A NOTICE PROVISION TO CALL ATTENTION TO THE FACT THAT OPENING OF PROPOSALS IS TO BE EXTENDED. IT HAS NO PRACTICAL MEANING WITHOUT A DESCRIPTION IN BLOCK #12 OF THE NEW DATE AND/OR TIME AND IS THEREFORE OF NO EFFECT UNLESS THAT NEW TIME AND/OR DATE IS SET FORTH IN BLOCK #12. IN ANY CASE, WE BELIEVE THAT A CHANGE FROM 1300 HOURS, APRIL 26 TO 1300 HOURS, MAY 1, MAY WELL BE CONSIDERED AN EXTENSION OF HOUR AND DATE.

ACCORDINGLY, WE CONCLUDE THAT THE DEADLINE SET BY THE RFP AS AMENDED FOR THE SUBMISSION OF PROPOSALS WAS 1300 HOURS ON MAY 3, 1971, AND, THEREFORE, THAT YOUR PROPOSAL WAS LATE.

ASPR 3-506 REQUIRES RFPS TO CONTAIN A CLAUSE NOTIFYING PROSPECTIVE OFFERORS THAT LATE PROPOSALS OR MODIFICATIONS TO PROPOSALS RECEIVED AFTER THE DATE FOR SUBMISSION HAS PASSED WILL NOT BE CONSIDERED. HERE YOUR PROPOSAL WAS RECEIVED AT 1320 HOURS, 20 MINUTES SUBSEQUENT TO THE CLOSING TIME SPECIFIED. ASPR 3-506(B) REQUIRES CONTRACTING OFFICERS TO TREAT SUCH LATE PROPOSALS IN THE SAME MANNER THAT LATE BIDS WOULD BE TREATED UNDER AN ADVERTISED PROCUREMENT.

PROVISION IS MADE IN ASPR 3-506(C) FOR CONSIDERATION OF A LATE PROPOSAL IN CERTAIN CIRCUMSTANCES. UNDER ASPR 3-506(C)(II), THE ONLY EXCEPTION TO THE GENERAL RULE WHICH COULD CONCEIVABLY BE APPLICABLE HERE, A LATE PROPOSAL MAY BE CONSIDERED WHEN THE SECRETARY OF THE DEPARTMENT DETERMINES THAT IT IS OF "EXTREME IMPORTANCE TO THE GOVERNMENT, AS FOR EXAMPLE WHERE IT OFFERS SOME IMPORTANT TECHNICAL OR SCIENTIFIC BREAKTHROUGH." ASPR 3- 506(C) FURTHER PROVIDES THAT ALL LATE PROPOSALS SHALL BE OPENED IN ORDER THAT A DETERMINATION MAY BE MADE AS TO WHETHER THE EXCEPTION CONTAINED IN ASPR 3-506(C)(II) IS APPLICABLE. IT APPEARS FROM THE RECORD THAT YOUR PROPOSAL WAS NOT OPENED IN ACCORDANCE WITH THE ABOVE-CITED REGULATION. HOWEVER, IN VIEW OF THE FACT THAT AWARD HAS ALREADY BEEN MADE BASED ON A DETERMINATION BY THE ACTIVITY THAT PROMPT AWARD WAS NECESSARY FOR THE CONTINUITY OF ESSENTIAL SERVICES, WE DO NOT BELIEVE THE CONTRACTING OFFICER'S OMISSION WOULD JUSTIFY DISTURBING THE AWARD.

ACCORDINGLY, YOUR PROTEST MUST BE DENIED.