B-180827, JUN 6, 1974

B-180827, JUN 6, 1974

ALTHOUGH CONTRACT SPECIALIST ERRONEOUSLY INFORMED OFFERER AFTER CLOSING TIME AND DATE FOR RECEIPT OF PROPOSALS THAT ITS PROPOSAL SUBMITTED WOULD BE ACCEPTED, AGENCY IS NOT REQUIRED TO CONSIDER SUCH LATE PROPOSAL BECAUSE RFP PROVIDES THAT PROPOSALS SUBMITTED AFTER SPECIFIED CLOSING TIME WILL NOT BE CONSIDERED AND ORAL EXPLANATIONS OR INSTRUCTIONS WILL NOT BE BINDING ON GOVERNMENT.

TO PAYNE-MAXIE CONSULTANTS:

PAYNE-MAXIE CONSULTANTS (PAYNE-MAXIE) HAS PROTESTED AGAINST THE UNITED STATES DEPARTMENT OF COMMERCE'S REFUSAL TO ACCEPT ITS PROPOSAL SUBMITTED IN RESPONSE TO THAT AGENCY'S REQUEST FOR PROPOSALS (RFP) NO. 4-36442. THE RFP, WHICH WAS ISSUED ON JANUARY 23, 1974, WITH A CLOSING TIME OF 4:00 P.M. ON FEBRUARY 25, 1974, SOLICITED PROPOSALS FOR "CONSULTANT CONTRACTORS' SERVICES PROGRAM OFFICE OF MINORITY BUSINESS ENTERPRISE REGION NO. 6: SAN FRANCISCO."

THE AGENCY REPORTS THAT ON FEBRUARY 25, AT APPROXIMATELY 2:30 P.M., MR. PAYNE OF PAYNE-MAXIE CALLED TO REQUEST AN EXTENSION IN THE 4:00 P.M. CLOSING TIME. THE REPORT INDICATES THAT A CONTRACT SPECIALIST WHO WAS NOT CONNECTED WITH THE SUBJECT PROCUREMENT TOOK THE CALL AND INFORMED MR. PAYNE THAT NO EXTENSION WOULD BE GRANTED. SOMETIME AFTER 4:00 P.M. THE SAME DAY, MR. PAYNE AGAIN CALLED THE AGENCY CONCERNING A POSSIBLE EXTENSION IN THE CLOSING TIME. HE WAS CONNECTED WITH THE CONTRACT SPECIALIST DESIGNATED IN THE RFP TO BE CONTACTED FOR INFORMATION PERTAINING TO THE SUBJECT RFP. APPARENTLY THE CONTRACT SPECIALIST, WITHOUT INFORMING THE CONTRACTING OFFICER, AGREED TO EXTEND THE CLOSING DATE TO 9:00 A.M. THE FOLLOWING DAY, FEBRUARY 26. THE AGENCY ADVISES THAT MR. PAYNE WAS INFORMED THAT THE PROPOSAL WOULD BE ACCEPTED AND CONSIDERED IF DELIVERY OF THE COMPLETE PROPOSAL WAS MADE TO THE SPECIALIST IN WASHINGTON, D.C., BY 9:00 A.M., ON FEBRUARY 26. MR. PAYNE WAS ALSO INSTRUCTED TO DELIVER THE TECHNICAL AND MANAGEMENT SECTIONS OF THE PROPOSAL TO THE DEPARTMENT'S REGIONAL OFFICE OF MINORITY BUSINESS ENTERPRISE IN SAN FRANCISCO, CALIFORNIA, BY 9:00 A.M., CALIFORNIA TIME, THAT SAME DAY.

ON FEBRUARY 26 THE PROPOSAL WAS DELIVERED AND ACCEPTED IN WASHINGTON. ABOUT 9:00 A.M., CALIFORNIA TIME, A REPRESENTATIVE OF PAYNE-MAXIE ATTEMPTED TO DELIVER PORTIONS OF THE PROPOSAL TO THE SAN FRANCISCO OFFICE. REGIONAL OFFICE PERSONNEL IMMEDIATELY INFORMED THE CONTRACTING OFFICER OF THE ATTEMPTED DELIVERY. THE CONTRACTING OFFICER NOTIFIED THE SAN FRANCISCO OFFICE NOT TO ACCEPT THE PROPOSAL SINCE THE CLOSING DATE AND TIME HAD PASSED. IT IS REPORTED THAT UNTIL HE WAS CONTACTED BY THE SAN FRANCISCO OFFICE, THE CONTRACTING OFFICER HAD BEEN UNAWARE OF THE SPECIALIST'S ADVICE AND ACTIONS CONCERNING PAYNE-MAXIE'S LATE PROPOSAL. THE ADMINISTRATIVE REPORT STATES THAT ON FEBRUARY 27, THE CONTRACTING OFFICER AND THE CONTRACT SPECIALIST MET WITH MR. PAYNE. MR. PAYNE WAS REPORTEDLY ADVISED THAT THE SPECIALIST'S ATTEMPT TO EXTEND THE CLOSING DATE WAS WITHOUT THE KNOWLEDGE AND CONSENT OF THE CONTRACTING OFFICER AND THAT PAYNE-MAXIE'S PROPOSAL COULD NOT BE CONSIDERED UNDER THE LATE PROPOSAL TERMS AND CONDITIONS OF THE RFP. ON MARCH 11, THE CONTRACTING OFFICER WROTE TO PAYNE-MAXIE AND EXPRESSED REGRET FOR THE CONFUSION AND THE CONTRACT SPECIALIST'S ERROR, BUT AGAIN POINTED OUT THAT PAYNE-MAXIE'S PROPOSAL COULD NOT BE CONSIDERED.

PAYNE-MAXIE ARGUES THAT THE AGENCY HAS "DEMONSTRATED BAD FAITH" IN ITS HANDLING OF THIS MATTER AND SHOULD BE REQUIRED TO ACCEPT THE PAYNE MAXIE PROPOSAL.

PARAGRAPH 8 OF STANDARD FORM 33A (MARCH 1969), WHICH WAS INCORPORATED IN THE SUBJECT RFP, PROVIDES THAT PROPOSALS RECEIVED AFTER THE EXACT HOUR AND SPECIFIED CLOSING DATE WILL NOT BE CONSIDERED, EXCEPT UNDER CIRCUMSTANCES NOT APPLICABLE HERE. IT IS CLEAR THAT THE CONTRACTING OFFICER ACTED IN ACCORDANCE WITH THE PROVISIONS OF THE RFP IN REFUSING TO CONSIDER PAYNE- MAXIE'S LATE PROPOSAL. FURTHERMORE, EVEN THOUGH PAYNE-MAXIE WAS ERRONEOUSLY ADVISED AFTER THE EXACT HOUR AND SPECIFIED DATE THAT ITS PROPOSAL WOULD BE ACCEPTED, PARAGRAPH 3 OF STANDARD FORM 33A WARNS PROSPECTIVE OFFERORS THAT ORAL EXPLANATIONS OR INSTRUCTIONS GIVEN BEFORE CONTRACT AWARD WILL NOT BE BINDING ON THE GOVERNMENT. MOREOVER, PAYNE- MAXIE WAS ADVISED AN HOUR AND A HALF BEFORE CLOSING THAT NO EXTENSION WOULD BE GRANTED. FINALLY, THE RECORD SHOWS THAT UPON BEING ADVISED OF THE CONTRACT SPECIALIST'S ERROR, THE CONTRACTING OFFICER ACTED EXPEDITIOUSLY IN INFORMING PAYNE-MAXIE THAT ITS PROPOSAL WOULD NOT BE CONSIDERED. IN THESE CIRCUMSTANCES, WE ARE UNABLE TO AGREE WITH PAYNE- MAXIE'S CONTENTION THAT THE AGENCY ACTED IN BAD FAITH.

THERE IS NO BASIS FOR OUR OFFICE TO TAKE ANY ACTION WITH RESPECT TO THE CONTRACTING OFFICER'S DECISION NOT TO CONSIDER PAYNE-MAXIE'S LATE PROPOSAL. ACCORDINGLY, THE PROTEST IS DENIED.