B-213474, MARCH 13, 1984, 63 COMP.GEN. 253

B-213474, MARCH 13, 1984, 63 COMP.GEN. 253

CONTRACTS - NEGOTIATION - REQUESTS FOR PROPOSALS - ACCEPTANCE TIME LIMITATION - EXPIRATION - FAILURE TO REQUEST EXTENSION WHERE OFFEROR INDICATES A PROPOSAL ACCEPTANCE PERIOD OF 1 DAY RATHER THAN THE 60 DAYS CONTEMPLATED BY THE REQUEST FOR PROPOSALS, THE CONTRACTING OFFICER HAS NO DUTY TO SEEK AN EXTENSION, SO THAT UPON EXPIRATION OF THE OFFER, THE OFFEROR IS INELIGIBLE FOR AWARD.

MATTER OF: FRED RUTLEDGE, MARCH 13, 1984:

FRED RUTLEDGE PROTESTS THE AWARD OF A CONTRACT TO KELLY WORKSHOP, INC., FOR THE OPERATION OF A GOVERNMENT-OWNED CAFETERIA, UNDER REQUEST FOR PROPOSALS (RFP) NO. 4-S-ARS-84 ISSUED BY THE DEPARTMENT OF AGRICULTURE. RUTLEDGE ESSENTIALLY CONTENDS THAT THE AGENCY FAILED TO EVALUATE HIS PROPOSAL PROPERLY. WE DENY THE PROTEST BECAUSE RUTLEDGE WAS OTHERWISE INELIGIBLE FOR AWARD.

THE RFP WAS ISSUED JUNE 13, 1983, AND TWO PROPOSALS WERE RECEIVED ON AUGUST 22, THE CLOSING DATE FOR RECEIPT OF INITIAL PROPOSALS. THE RFP ADVISED, BY STANDARD PROVISION, THAT THE GOVERNMENT MIGHT ACCEPT AN OFFER "WITHIN THE TIME SPECIFIED THEREIN," WHETHER OR NOT NEGOTIATIONS ARE CONDUCTED, UNLESS THE OFFER IS WITHDRAWN BY WRITTEN NOTICE RECEIVED BY THE GOVERNMENT PRIOR TO AWARD. ADDITIONALLY, THE FOLLOWING STANDARD PROPOSAL ACCEPTANCE CLAUSE WAS INCLUDED ON THE FIRST PAGE OF THE RFP:

(THE UNDERSIGNED AGREES, IF THE OFFER IS ACCEPTED WITHIN . . . CALENDAR DAYS (60 CALENDAR DAYS UNLESS A DIFFERENT PERIOD IS INSERTED BY THE OFFEROR) FROM THE DATE FOR RECEIPT OF OFFERS * * * TO FURNISH ANY OR ALL ITEMS * * * IN THE SCHEDULE. RUTLEDGE PLACED THE WORD "ONE" IN THE BLANK SPACE, THUS LIMITING ITS ACCEPTANCE PERIOD TO 1 DAY. THE OTHER OFFEROR UNDER THE RFP OFFERED A 60-DAY ACCEPTANCE PERIOD.

RUTLEDGE DID NOT EXTEND THE 1-DAY PROPOSAL ACCEPTANCE PERIOD BEFORE ITS EXPIRATION, AND NO AWARD WAS MADE DURING THAT TIME PERIOD. THE CONTRACTING OFFICER, WHILE HARBORING RESERVATIONS ABOUT THE PROPRIETY OF CONSIDERING RUTLEDGE'S PROPOSAL IN VIEW OF THE 1-DAY ACCEPTANCE PERIOD, NEVERTHELESS SUBMITTED BOTH PROPOSALS FOR TECHNICAL EVALUATION. APPROXIMATELY 7 WEEKS LATER, ON OCTOBER 4, THE CONTRACTING OFFICER, AFTER REVIEWING THE EVALUATION RESULTS, AWARDED THE CONTRACT TO KELLEY. COMMUNICATION RELATING TO RUTLEDGE'S PROPOSAL TOOK PLACE BETWEEN THE CONTRACTING OFFICER AND RUTLEDGE FROM THE CLOSING DATE FOR RECEIPT OF INITIAL PROPOSALS TO THE DATE OF CONTRACT AWARD.

WE NEED NOT CONSIDER THE PROPRIETY OF THE EVALUATION OF RUTLEDGE'S PROPOSAL, SINCE ONCE RUTLEDGE'S OFFER EXPIRED BY ITS OWN TERMS AFTER 1 DAY, IT WAS NO LONGER ELIGIBLE FOR AWARD. THE TERMS OF AN OFFEROR'S PROPOSAL ACCEPTANCE PERIOD DEFINE THE PERIOD OF THE OFFER'S EXISTENCE. HERE, RUTLEDGE VOLUNTARILY RESTRICTED THE ACCEPTANCE OF ITS PROPOSAL BY THE GOVERNMENT TO 1 DAY, AND MADE NO EFFORT TO EXTEND ITS A OFFER DURING THE ALLOTTED TIME. THUS, AFTER 1 DAY, AND WITHOUT FURTHER ASSENT FROM RUTLEDGE, THERE SIMPLY WAS NO LEGAL OFFER FOR THE GOVERNMENT TO CONSIDER OR EVALUATE.

MOREOVER, WE DO NOT BELIEVE THE CONTRACTING OFFICER WAS OBLIGATED TO REQUEST RUTLEDGE TO EXTEND THE OFFER. IN OUR VIEW, WHERE AN OFFEROR UNEQUIVOCALLY SPECIFIES A SHORTER PROPOSAL ACCEPTANCE PERIOD THAN REQUESTED (HERE, 1 DAY INSTEAD OF 60), AND THERE IS NO INDICATION THAT THE OFFEROR HAS CHANGED HIS INTENTIONS CONCERNING THE DURATION OF THE OFFER, THERE IS NO DUTY ON THE PART OF THE CONTRACTING OFFICER TO SEEK AN EXTENSION OF THE LIMITED PROPOSAL ACCEPTANCE PERIOD FROM THE OFFEROR. SEE ENVIRONMENTAL TECTONICS CORPORATION, B-183616, OCTOBER 31, 1975, 75-2 CPD 266 (CONCERNING A FORMALLY ADVERTISED PROCUREMENT).

THUS, SINCE RUTLEDGE'S PROPOSAL EXPIRED, WE WILL NOT REVIEW HIS COMPLAINT ABOUT THE EVALUATION OF THE PROPOSAL. THE PROTEST IS DENIED.