B-181100, MAY 29, 1974

B-181100, MAY 29, 1974

ALTHOUGH AMENDMENT TO RFP EXTENDING TIME FOR RECEIPT OF PROPOSALS FROM 2 P.M., APRIL 1, 1974 TO APRIL 15, 1974, DID NOT SPECIFY A TIME ALONG WITH EXTENDED CLOSING DATE, AGENCY PROPERLY REGARDED AS LATE A PROPOSAL SUBMITTED AFTER 2 P.M. ON APRIL 15, 1974, SINCE IT SHOULD HAVE BEEN CLEAR TO ANY OFFEROR THAT THE AMENDMENT HAD NOT CHANGED THE 2 P.M. TIME FOR RECEIPT OF PROPOSALS. 51 COMP. GEN. 149 (1971).

TO NEW JERSEY DEPARTMENT OF COMMUNITY AFFAIRS:

THE NEW JERSEY DEPARTMENT OF COMMUNITY AFFAIRS HAS PROTESTED AGAINST THE REFUSAL OF THE DEPARTMENT OF HOUSING AND URBAN DEVELOPMENT (HUD) TO CONSIDER ITS PROPOSAL SUBMITTED IN RESPONSE TO REQUEST FOR PROPOSALS (RFP) H-265-74.

THE RFP SOLICITED PROPOSALS FOR DESIGNING AND DEMONSTRATING METHODS FOR IMPROVING THE CAPACITY OF LOCAL CHIEF EXECUTIVES TO DEAL WITH COMMUNITY DEVELOPMENT AND OTHER MANAGEMENT CONCERNS. THE RFP AS INITIALLY ISSUED SPECIFIED 2 P.M., APRIL 1, 1974 AS THE CLOSING TIME FOR RECEIPT OF PROPOSALS. AMENDMENT NO. 2 TO THE RFP, DATED MARCH 15, 1974, EXTENDED THE DUE DATE TO APRIL 15, 1974. NEW JERSEY'S PROPOSAL WAS HAND-DELIVERED TO HUD BETWEEN 3:15 AND 3:30 P.M. ON APRIL 15. THREE DAYS LATER, HUD NOTIFIED NEW JERSEY THAT ITS PROPOSAL HAD BEEN SUBMITTED LATE AND THEREFORE COULD NOT BE CONSIDERED.

HUD VIEWS NEW JERSEY'S PROPOSAL AS LATE BECAUSE IT WAS SUBMITTED LATER THAN 2 P.M. ON APRIL 15. NEW JERSEY, HOWEVER, CLAIMS THAT THE RFP AMENDMENT WAS AMBIGUOUS AND WAS REGARDED AS PERMITTING SUBMISSION OF PROPOSALS "PRIOR TO APRIL 16, OR AT THE VERY LEAST, BEFORE THE CLOSE OF THE NORMAL BUSINESS DAY ON APRIL 15." NEW JERSEY POINTS TO BLOCK 9 OF THE AMENDMENT, WHICH STATES THAT "THE HOUR AND DATE SPECIFIED FOR RECEIPT OF OFFERS *** IS EXTENDED," AS LEADING NEW JERSEY TO "REASONABLY ASSUME" THAT BOTH THE TIME AND DATE WERE EXTENDED, EVEN THOUGH BLOCK 12 OF THE AMENDMENT SAID ONLY THAT "THE PROPOSAL DUE DATE IS HEREBY EXTENDED FROM APRIL 1, 1974 TO APRIL 15, 1974."

FPR 1-3.802-1 PROVIDES THAT PROPOSALS RECEIVED AFTER THE EXACT TIME SPECIFIED FOR RECEIPT MAY NOT BE CONSIDERED FOR AWARD EXCEPT IN CERTAIN CIRCUMSTANCES NOT APPLICABLE HERE. PAGE 2 OF THE RFP, UNDER THE HEADING "LATE PROPOSAL WARNING", INFORMED PROSPECTIVE OFFERORS THAT "THE CONDITIONS APPLICABLE TO LATE PROPOSALS IN PARAGRAPH 7, ATTACHMENT A WILL BE STRICTLY APPLIED." PARAGRAPH 7 OF ATTACHMENT A (PROPOSAL INSTRUCTIONS AND CONDITIONS), INCLUDED IN THE RFP IN ACCORDANCE WITH FPR 1-3.802-1, WARNED OFFERORS OF THE LATE PROPOSAL RULES SET FORTH IN THAT SECTION. ALTHOUGH HUD COULD HAVE UTILIZED THE SOMEWHAT LESS STRICT ALTERNATIVE PROCEDURE SET FORTH IN FPR 1-3.802-2, WHICH ALLOWS CONSIDERATION OF LATE PROPOSALS OFFERING SIGNIFICANT COST OR TECHNICAL ADVANTAGES TO THE GOVERNMENT, IT IS CLEAR THAT THIS RFP CONTEMPLATED STRICT ADHERENCE TO THE LATE PROPOSAL RULES OF FPR 1-3.802.1. THEREFORE, NEW JERSEY'S PROPOSAL CANNOT BE CONSIDERED IF IN FACT IT WAS SUBMITTED LATER THAN THE TIME SPECIFIED BY THE RFP, AS AMENDED, FOR RECEIPT OF PROPOSALS. SEE 50 COMP. GEN. 547, 552-3 (1971).

IN 51 COMP. GEN. 149 (1971), WE CONSIDERED A CASE SIMILAR TO THIS ONE. THERE, THE CLOSING DATE WAS INITIALLY SET AT 1500 HOURS ON APRIL 23, 1971. AN AMENDMENT TO THE RFP CHANGED THAT TO 1300 HOURS ON APRIL 26. SECOND AMENDMENT EXTENDED THE DATE TO MAY 3, BUT WAS SILENT AS TO THE TIME. IN HOLDING THAT THE TIME SET FOR RECEIPT OF PROPOSALS WAS 1300 HOURS ON MAY 3, WE SAID:

"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." 51 COMP. GEN. AT 150- 151.

NEW JERSEY ATTEMPTS TO DISTINGUISH THAT CASE BECAUSE OF THE TWO AMENDMENTS, ONE OF WHICH CHANGED BOTH THE TIME AND DATE WHILE THE OTHER CHANGED ONLY THE DATE. NEW JERSEY READS OUR DECISION AS INDICATING THAT IT WAS "THE SERIES OF DOCUMENTS RECEIVED" THAT PRECLUDED THE CREATION OF AN AMBIGUITY AS TO THE INTENDED CLOSING TIME BECAUSE IT WAS CLEAR FROM THE FIRST AMENDMENT THAT ANY INTENDED CHANGE IN TIME WOULD BE EXPLICITLY STATED. HERE, OF COURSE, THERE WAS NO PRIOR AMENDMENT CHANGING BOTH THE TIME AND DATE, AND IT IS NEW JERSEY'S CONTENTION THAT HUD'S FAILURE TO STRIKE THE LANGUAGE REFERRING TO CHANGE OF TIME FROM PARAGRAPH 9 OF AMENDMENT NO. 2, LED IT TO BELIEVE THAT PROPOSALS COULD BE SUBMITTED LATER THAN 2 P.M.

WE CANNOT AGREE WITH NEW JERSEY'S POSITION. OUR HOLDING IN 51 COMP. GEN. 149, SUPRA, WAS NOT PREDICATED UPON THE SERIES OF AMENDMENTS TO THE RFP. IT WAS OUR BELIEF THAT THE TWO AMENDMENTS, WHEN TAKEN TOGETHER, MADE IT CLEAR THAT THE SECOND AMENDMENT CHANGED ONLY THE DATE AND NOT THE HOUR FOR RECEIPT OF PROPOSALS. WE DID NOT MEAN TO IMPLY, HOWEVER, THAT THERE WOULD HAVE BEEN AN AMBIGUITY HAD THERE NOT BEEN A PRIOR AMENDMENT CHANGING BOTH DATE AND TIME. ON THE CONTRARY, WE EXPLICITLY POINTED OUT THAT AN INDICATION IN BLOCK 9 THAT THE CLOSING TIME FOR RECEIPT OF PROPOSALS IS TO BE EXTENDED HAS NO PRACTICAL MEANING AND IS OF NO EFFECT UNLESS A DESCRIPTION OF THE EXTENDED TIME (DATE, HOUR, OR BOTH) IS SET FORTH IN BLOCK 12. WE FURTHER STATED OUR BELIEF THAT A CHANGE FROM ONE DATE TO ANOTHER "MAY WELL BE CONSIDERED AN EXTENSION OF HOUR AND DATE." IN THIS SITUATION, INVOLVING THE IDENTICAL AMENDMENT FORMS, WE DO NOT BELIEVE THAT THE RFP AMENDMENT ALLOWED AN OFFEROR TO SUBMIT A PROPOSAL AS LATE AS THE CLOSE OF BUSINESS ON APRIL 15. (WE UNDERSTAND INFORMALLY FROM HUD THAT 75 PROPOSALS WERE RECEIVED AND ONLY 4 WERE LATE, 3 OF WHICH WERE SENT THROUGH THE MAIL.) PERHAPS AN OFFEROR COULD HAVE HAD SOME QUESTION REGARDING THE CORRECT CLOSING TIME, AND IF SO SHOULD HAVE REQUESTED CLARIFICATION FROM HUD PRIOR TO THE DATE SET FOR RECEIPT OF PROPOSALS. HOWEVER, WE DO NOT BELIEVE THAT ANY OFFEROR COULD HAVE REASONABLY CONCLUDED FROM THE AMENDMENT ALONE THAT THE 2 P.M. TIME FOR RECEIPT OF PROPOSALS HAD BEEN CHANGED.

ACCORDINGLY, SINCE HUD'S POSITION IN THIS MATTER IS CONSISTENT WITH THE APPLICABLE REGULATIONS, THE PROTEST MUST BE DENIED.